Legal Information, Public and Private

The making of law is a quintessentially public activity. The suggestion that any private person or group owns the law-making process is a cynical one—if it were true, there would something deeply wrong with the state.

At first blush, then, “public legal information” seems to be redundant. If it’s legal information, then of course it’s public. Even since Hammurabi inscribed his code of laws on a large stone and placed it in a public place for all to read, it’s been understood that public dissemination is part of the law-making process. Thus, when we discover that the dissemination of legal information is largely in the hands of private, profit-making publishing companies, it’s only natural to think of this as a worrisome condition. Somehow, it seems, private interests have appropriated a public function, and something ought to be done to return legal information to its proper public status.

My purpose in this blog entry (which must absolutely not be confused with the purpose, policy, or opinion of my employer, or anyone else for that matter) is neither to support nor oppose the notion that legal information should become more public or less private. It is, instead, to reflect on why the dissemination of legal information, at least in the United States, became a subject of private commerce, and to say a few words about the relationship between public legal information services like the LII and commercial law publishers.

One way of explaining the prevalence of private legal information is as a default of the public authorities. The government that makes the law had the responsibility to disseminate it, but it didn’t, and so private publishers stepped in to fill the need. There is an element to truth to this, but I don’t think it tells the whole story. It is true that various law-making bodies have, from time to time, seemed to decide that their responsibility to promulgate the law extended no further than ensuring that the law was somehow available to the public—that it was open for inspection in a clerk’s office, perhaps, or even just that it was spoken in a public place. As long as the law was not kept secret, it was public enough.

But before we criticize the government too harshly for failing to take the steps needed to make the law actually known to the public rather than simply theoretically available, consider what those next steps are. Let’s look first at the situation before the coming of electronic publishing.

For about the first two hundred years of the republic, the only practical way to disseminate the law was in print. And the process of printing the law has two elements that are inextricably intertwined: the mechanical tasks of setting type, printing pages, binding leaves into a book, and so forth; and the editorial task of deciding what the printed book would contain, and how it would be organized.

The making the law is a quintessentially public function, and the mechanical parts of book production can be done as readily by the government as by anyone else. But the task of editing the law is inherently difficult for governments to perform. It’s hard enough for a representative body of elected officials to decide what the text of the law is. Deciding what law should be published in what volume, how it should be arranged within the volume, and what indexing and abstracting should be applied to it are tasks of a complexity and delicacy that make them very difficult for collective decision-makers.

Consider, for example, the fairly common situation in which a state makes official publication of its session laws, but leaves the publication of the codification of those laws to private publishers. The printing of session laws requires a relatively low level of editorial judgment—the laws are printed one after another in the order they were passed or signed by the governor. If an index is provided, it doesn’t need to be a very good index, because, as a practical matter, almost no one is going to use it. The task of printing session laws is often contracted to private publishers, but it can also be done quite satisfactorily by the government itself if the government has the necessary expertise in the mechanical aspects of book production.

Now, a state with published session laws has done considerably better than one that simply makes laws available for inspection in the office of the legislative clerk, but it still falls far short of making those laws known to the public. No one learns the state of the law by reading the session laws if a code is available. And producing a code requires a much higher degree of editorial judgment in the selection, arrangement, and indexing of its contents.

The federal government and some states have taken charge of the basic aspects of the codification process for statutes. And sometimes, as with the United States Code, there is an officially-produced version of the codified laws. But even this is never the resource of choice for those who wish to learn the state of the law. Even if there is an official code available, legal researchers much prefer to use an annotated code—a code which has the basic structure of the official code, but which enhances it a much broader array of editorial aids, chiefly in the form of annotations and detailed indexes. And very few legislatures publish official annotated codes.

Private publishers came to dominate the task of making the law known because they excel at the editorial functions needed to make a large body of law intelligible to those who wish to learn the law. It is not impossible for public bodies to edit the law, but they’re not very good at it. Even where public law publishing has not been made largely irrelevant by the products of the private publishers, its editorial quality is suspect. My favorite example of this is the official index to the Federal Register—it is not a subject index, it’s an agency index. This illustrates one the problems of public law publishing: from a bureaucratic point of view, what’s important is not what the law is about, but who made it.

Private law publishers were better than the government at the essential editorial tasks necessary to make the law known. And making the law known is a task that admits of degrees. A person with access to the Statutes at Large and the Federal Register had, in some sense, the wherewithal to know the federal tax laws of the United States. A person with access to the United States Code and the Code of Federal Regulations would have found the task much easier. A person with access to United States Code Annotated (or United States Code Service) and the Code of Federal Regulations Annotated would do better still. But no serious tax practitioner would venture into the area without access to one of the premier loose-leaf sets like the United States Tax Reporter or the CCH Standard Federal Tax Reporter.

In the world of paper law publishing, no matter what level of service the government chose to provide, there would always be (at least for areas of the law of wide interest or high value) commercial offerings that were better than the official ones. This might not be the case if the law were simple, straightforward, and easy to understand. But in the real world, the law is almost always so complicated and voluminous that it’s all but incomprehensible without a good measure of editorial guidance.

Thus, the state of the legal information world before the coming of computers was one where there was a limited amount of official publication, but in which nearly all of the most useful and valuable information tools were produced by private companies. Notwithstanding the private status of the publishers, the law publishing industry was seen by many people as a quasi-public activity. All of the major players made it a point to cultivate a public-service image for the enterprise, and a reputation for both punctilious accuracy and strict neutrality.

OK, so much for the world of paper books occupied by our ancestors. How much of this is still relevant in the age of the internet? Most of it, I think.

With the coming of the internet and advanced text-processing tools, the mechanical tasks associated with the production of paper books have largely been supplanted. No one needs to know how to set type, print pages, or bind books in order to create a useful public legal information resource on the internet. But the mechanical aspects of book production were never the real problem. In order for a public legal information resource on the internet to be able to take the place of private law publishers, there also needs to be a good technological substitute for the editorial component of law publishing.

For a while, this seemed possible to many people. Lexis became a major legal information resource without any significant investment in editorial work. The Saltonian orthodoxy that held sway in the information retrieval community from the 1960s though the 1980s taught that the days of manual intellectual indexing were numbered—that the future belonged to clever free text algorithms. But beginning with the Blair and Maron paper in 1985, it has become increasingly clear that, though exceedingly useful, free text retrieval techniques are not a complete substitute for intellectual indexing. The death knell for the Saltonian outlook sounded a few years ago when Lexis decided that it needed to add a measure of intellectual indexing to its main case law databases. Lexis, which founded its business on the idea that free text provided adequate access to the law, and which spent years pooh-poohing the intellectual indexing offered by Westlaw, threw in the towel. Perhaps there will, one day, be technology that obviates the need for human editorial effort, but that horizon is now too distant for company that aspires to provide high-end legal information today.

The hope of liberating legal information from the private sector was, I think, greatly influenced by the early success of Lexis. With the coming of the internet and some related technologies, it became apparent that the functional equivalent of the early Lexis system could be assembled at relatively low cost by anyone who cared to do so. And as long as Lexis seemed to prosper without making any investment in editorial resources, it seemed reasonable that a public legal information resource could follow in its wake. Now, however, that most people have lost the technological optimism of the Saltonians, it is less easy to see how a public resource can reasonably compete with the offerings of the major private publishers.

Now a sophisticated tax practitioner would not attempt to do serious research without having access to the full array of tax information available through an electronic resource like Checkpoint, or Westlaw, or Lexis.  And many would insist on having access to more than one of these services, and to a number of others besides. Electronic publication has not made the products of the private publishers dispensable, it’s just changed the list of indispensable resources, and inspired the creation of some new ones.

I don’t mean to suggest that the availability of the new crop of public (and low-cost commercial) legal information resources has had no effect on legal research—far from it. But that effect has not, for the most part, been to make legal research simpler and less expensive: sometimes it’s simpler and cheaper, but just as often it’s more complex and more expensive. The unambiguous effect is that legal research is, or at least can be, better.

There are any number of respects in which legal research has gotten better in recent years—let me just mention one obvious example. There was a time when few people cared that the paper citation indexes everyone relied on were months out of date—there was only one way to check citations, so that one way was good enough. One of the first major effects of electronic publishing on actual research practice was to make it possible, and thus needful, to verify citations to within days, or sometimes hours or even minutes, rather than months.

The effect of the public legal information movement has not been to supplant commercial services, but to drive them to innovate. If basic legal information is freely available, the only way to make money in the segment is to offer more. If the goal of the LII is to put Westlaw and Lexis out of business, LII is bound to fail. But LII can, and does, make legal information better and more available. The new low-end providers like Loislaw are pushed to provide more because they need to be better than LII. Lexis has been pushed to offer more, because it has to be better than Loislaw. And Westlaw has been pushed to offer more because it has to be better than Lexis.

LII is important to legal information not because it’s the best service, but because it alters the ecology of the legal information market. It makes everyone else better. And when it gets better, everyone else will get better still.

Dan Dabney is Senior Director for Classification at Thomson Reuters
Global Resources in Zug, Switzerland.  Dan has a law degree and a Ph.D.
in library and information studies, and worked as a lawyer, a law
librarian, and a library school professor before entering the private
sector.  He was one of the principal designers of KeyCite.

VoxPopuLII is edited by Judith Pratt