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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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Twenty-five years ago the LII at Cornell showed the world that access to the law via the Internet for all is possible.  It is not only possible, but can be cheap, even free.  And that “free” can be sustained.  It was and continues to be illuminating, even in the remotest places in Africa. The importance of the pioneering work of the LII, as it translates in Africa, is best understood against the background of complete absence of law reports and updated legislation in many African countries.  

Before free access to law touched down in South Africa in 1995, legal information was primarily distributed via the duopoly of the commercial legal publishers. Court reporters– usually advocates practicing in the region of the Court, would act as correspondents for the legal publishers. Cases would take months to be printed in the law reports and, due to constraints of the paper medium, heavy filtering could prevent the publication of really interesting cases from courts lower in the judicial hierarchy. Sometimes judgments marked by the presiding judge as reportable would be omitted from publication too. Space in the reports came at a premium – few got in.

This frustrated users of legal information (and most judges, who could not showcase their work and missed out on promotions!). It meant that additional resources were spent on using informal networks for gathering much needed legal information.  It also usually meant that only the handful of rich law firms, residing in the major urban areas of the country, had access to court judgments, that gave them advantage in preparing for litigation. Hunting for judgments from fellow colleagues, court registries and court libraries was common-place, as candidate attorneys were sent to the court’s archives to look for precedent.  It was not efficient, but often proved effective for those who could afford this kind of information-gathering.  Magistrates, judges and government lawyers could not dream of having this kind of information at their disposal. Citizens rarely had a chance to read a full judgment for themselves.

Imagine (remember?) that time!  Well, this would still be the situation in South Africa, and most definitely in many other African countries today, if it were not for SAFLII, AfricanLII, and 15 other LII projects across our continent that make the law available to all for free.  SAFLII started at the University of the Witwatersrand when the then Head of the Law Library – Ruth Ward, inspired by what Cornell had been doing for the past 3 years, enlisted the help of a law student with an unusual interest in computers to develop a website to host the judgments of the newly created South African Constitutional Court (there was yuuge demand for this material locally and regionally).  The Law School later partnered with AustLII to upgrade the software infrastructure, and SAFLII was born, a new member of the Free Access to Law Movement.  

In one of a few firsts in the FAL movement, almost exclusively academic until then, SAFLII was acquired and moved to the Constitutional Court of South Africa.  I remember some expressed apprehension — what would happen to an independent academic project under government? — but this turned out to be the best move.  SAFLII flourished with the backing of the Constitutional Court judges and expanded its content through a partnership with the Southern African Chief Justices Forum.  Unprecedented amount of African legal content slowly made its way to the web. LexUM and CanLII helped us a lot with advice on editorial practices and processing content, while Andrew and Philip of AustLII would fly in once or twice a year to work on site to fine-tune the software.  

We dreamt of systems the magnitude of AustLII and CanLII, and the sophistication of the LII.  But our reality was different.  When we were not busy digitizing paper-based content, we were engaged in training our users in electronic legal research. Yet users continued to demand the convenience of digested cases and consolidated legislation. Capacity was hard to come by.  Our friends at Kenya Law Reports right about then decided to open access to their (government funded) material.  This raised the bar higher – every judge in our network wanted their own Kenya Law.

To some extent, this became one of the core reasons for setting up the AfricanLII operation – as a programme that would contextualize the experience our team gathered with developing SAFLII, to help build locally-responsive LII operations.  The justice sector in most of our countries of operation was starving for proper legal information – in the vast majority of places there is no regular law reporting or law consolidation, and that affected their work and impacted society and individuals rights sometimes in most adverse ways. Both law revision and law reporting are expensive undertakings, especially when one has to start from scratch. But building a massive materials collection would not be useful if our users could not or would not make use of it. So we had to adapt and with our meager resources – devolve a centralised model (SAFLII) into local operations that allowed for better contextualization of the LIIs.

The proper development of the legal infrastructure, which is what LIIs mostly do in many African countries,  means moving at a pace and alongside the overhaul of vital areas of substantive law – human rights, environment, business and commercial law, ICTs and media, all areas developing at a considerable pace in the region. How do we adapt our LIIs to assist this development and remain relevant?

In this sense, I remember during a sustainability workshop discussion with LexUM, the LII and others, back in 2009, Tom Bruce made the point about being strategic in the choices informing our LII development plans.  Of course he raised it in his inimitable style – the fable involved something about throwing bottles in an ocean of bottles and the effects of that – but the advice was right on point.  When faced with a complete vacuum, as we were with the lack of digital legal information in Africa, the easiest thing to propose and attempt to do is to throw all your available resources at digitizing all information, to serve all potential users out there.

African LIIs, operating with scarce funding and in difficult economic times, are now more than ever orienting towards capitalizing on and further developing the value of the few collections, competencies and advantages that would derive maximum value for their users.  Having built a solid base of legal material, we are now looking at arranging it and communicating it in a way that is responsive to the needs of the justice sector.  For most LIIs, that would mean digesting (or sourcing interpretative material)  legal information and pushing through social media channels with the aim to educate citizens.  Or editorializing legal information to serve commercial audiences – and derive income for the LIIs. Or package our LIIs and ship them for off-line use by magistrates working in remote, unconnected areas of Africa.  All of this has meant that we’d had to strike a balance and pull resources out of digitization (the ocean of content) and invest in services (new kinds of bottles) that have the potential to sustain our African LIIs into the future.   

The LII at Cornell was a pioneer 25 years ago, but Tom, Sara and crew continue to push the envelope – innovating not only technology but also the business of free law.  I guess their flexibility and adaptability are some of the reasons why the LII is still going strong and growing 25 years into its existence.  And this has been the ultimate lesson for me as I continue to work together with a touch-group of committed individuals across the African continent, forging ahead and cementing their African LIIs into the future of their countries.  Our collective hats off to the LII @ Cornell for helping us figure things out along the way!

Mariya Badeva-Bright is the co-founder of the African Legal Information Institute. From 2006 to 2010, she was the head of Legal Informatics and Policy for the Southern African Legal Information Institute (SAFLII).  She has taught undergraduate courses in Legal Information Literacy and coordinated the postgraduate program in Cyberlaw at the University of the Witwatersrand in Johannesburg.  She holds a Magister Iuris in law from the Plovdivski universitet “Paisii Hilendarski” in Bulgaria, and an LLM in legal informatics from Stockholm University.

 

 

This year, I was lucky enough to be able to attend the annual LVI conference, held this year at Limmasol, Cyprus.  A truly beautiful place where Laris Vrahimis from CyLaw and the Cyprus Bar went out of their way to make a memorable event.  It was also an ongoing affirmation that the Free Access to Law Movement is alive and working.  But there was also a note of frustration and pessimism in the air.  The note of frustration was summed up in the question “where do we go from here?”  After 25 years of LIIs, this is a fair question.

It’s a very important question.  The LIIs across the world have been working on making primary source law available to their fellow citizens, and have gotten pretty good at it.  There are still far too few LIIs, but the ones that are around have the basics down pretty well.  But most are stuck at that basic level.  This is a problem with several levels.  The first is that the basics themselves are not all that easy.  It’s a lot of work to gather, process, and publish the law on the shoestring budgets that we all have.  And it is of crucial importance that the basic primary source law stay available.  This basic level must be maintained.

But what about everything else that ought to be done?  Here are three things to do.  There are places, like Cornell, that are doing some already, but there is room for every LII to think about and work on these steps.  

Access to Justice

The first item is assisting users with interpretive materials and guidance.  Fortunately, the Cornell LII, the Center for Computer Assisted Legal Instruction (CALI), and Justia have been doing things along these lines already.  For years now, Cornell LII has been developing WEX (https://www.law.cornell.edu/wex), a free legal encyclopedia and dictionary.  They also have the Supreme Court Bulletin (https://www.law.cornell.edu/supct/cert).  Justia has similar services in the form of the Justia blog and the Justia Verdict legal commentary site (https://verdict.justia.com/), as well as its crowdsourced court decision annotations.  In the case of the LII, the labor and expertise is supplied mostly through the students of Cornell Law School, under the supervision of Cornell LII editors.  In the case of Justia, it is lawyers and academics who wish to be published, and who are getting advantages from the Justia service in return for their efforts.  

CALI does not have decision commentary, but has developed their A2J guided interview software system (https://www.a2jauthor.org/).  A2J allows law clinics to develop online interviews that guide clients through all the information needed to address a selected legal issue, and provide needed information or even print court or other documents ready for filing.

Translating these kinds of services to other LII’s might be harder or easier depending on their individual circumstances.  Some LII’s may be in a position to recruit volunteer labor, in which case, generation of commentary and guidance for popular benefit could be a practical path.  As to the CALI A2J system, it is available to anyone.  However, its use requires a great deal of initial dedication and labor to produce an interview, and any interview produced will require maintenance.

Archiving

Maybe the least interesting thing that we can be involved with. It is certainly not going to generate interest (or donations) from the public.  However, it is of great importance.  How easy is it for 25 years of vital legal information to be wiped out in a small and terrible flash.  Even more insidious, is a slow bleed from bit rot. It’s the kind of problem that we won’t be aware of until it’s already upon us.  

Now it goes without saying that we all back up.  And we all back up carefully and regularly.  But as we move forward, and look to the long term, we know that real disasters will come upon us at some point.  We can assure ourselves that it won’t happen anytime soon, or on our watch.  But of course, that is exactly the sort of thinking that the librarians in Alexandria engaged in.  It did work for a long time, but not indefinitely.  The only real solution to data longevity is the old solution that the print world has been using since the development of the printing press: replication and distribution.  Many copies, distributed as widely as possible.

To the computer scientist, this seems horribly inefficient.  It is.  But they must overcome their horror, and understand that efficiency is not an end in itself.  Longevity is far more important.  And to live indefinitely, data must be immune from institutional failure.  The only way to guarantee that is not to rely on single institutions.  

A more serious barrier to widespread replication of data is distrust, both within institutions and nationally.  On the institutional level, there are understandable fears concerning reputation, prestige and funding.  If an LII allows other institutions to have a copy of the material they work so hard to develop, they will no longer get the credit they deserve.  In the long run, this will lead to a lack of support for the LII.  On the national level, some LIIs fear that sharing their data with institutions outside of their country will damage their standing with the governmental bodies they rely on for their data and for support.

Both of these are real problems that cannot be dismissed lightly.  However, as with the computer scientists, these hesitancies should not stand in the way of long term viability of the data that LIIs work so hard to develop.  To the extent we can do so, we need to distribute our data.  If this is just to places willing to act as repositories (with an agreement not to republish), that would be enough to insure the survival of the data.  For others, acknowledgement of their efforts through branding, etc. may be enough.  But in the end something like this needs to happen.  As a librarian, I can see that if every law library (law library defined as any institution that collects law) in the world had an electronic copy of all the world’s law, it would be very difficult to lose anyone’s law.  That would be quite something.  

A U.S. Problem: Administrative Decisions

I was very interested and encouraged to read  Pierre-Paul Lemyre’s February 22 post, “A Short Case Study of Administrative Decision Publishing” where Washington state’s PERC decisions are being made public.  For me, this is the next frontier of legal publishing that is badly in need of attention.  In the U.S., all 50 states and the federal government have elaborate administrative law structures that include administrative tribunals.  These tribunals are not a part of the regular judiciary, but are attached to the executive branch of government, usually the department with subject-matter jurisdiction.  In the past, the most important of these tribunals had their decisions published in print, usually by the GPO.  Of course, sending information to the GPO is not something agencies do very much any more, and from the way many government agency websites are organized, many either do not publish their ALJ decisions are hide them deep within their websites.  In the best of cases, they are not well searchable, and there is certainly no easy way to compare one department’s decisions with any other.

The result of the above situation is that only the ALJs and expert practitioners are even aware of the existence of ALJ decisions in any particular field.  Even among those practitioners, there is little or no knowledge of how other agencies adjudicate identical issues.  On the state level this situation is often worse (except in places like New Jersey, where there is a central Office of Administrative Law which hears all administrative cases and diligently publishes their decisions. See: https://njlaw.rutgers.edu/collections/oal).  

Imagine, however, the possibilities raised by gathering and publishing federal ALJ decisions in an integrated collection.  In New Jersey, where these decisions are published, there is a large body of administrative common law which lends the consistency of stare decisis to their decisions.  This applies not only to decisions within each agency, but on similar issues between agencies as well.  The unified cadre of ALJs certainly makes this possible, but even without that, the existence of a full set of decisions which can easily be browsed and compared gives great impetus towards uniformity and predictability in decision making.  It is a great aid to the agencies, the bar and the public.

Unfortunately, I despair of ever convincing the federal government to embrace this sort of arrangement.  However, this is exactly the sort of project that an LII can excel at.  The gathering will be difficult, but doing this will greatly improve the state of American law.

John P. Joergensen is the Senior Associate Dean for Information Services, a Professor of Law and an award-winning Director of the Law Library that serves Rutgers Law Schools in both Newark and Camden . 

Professor Joergensen organized the New Jersey Courtweb Project, which provides free Internet access to the full text of the decisions of the New Jersey Supreme Court and appellate courts, Tax Court, administrative law decisions, U.S. District Court of the District of New Jersey decisions, and the New Jersey Supreme Court’s Ethics Committee opinions. His work also included digitizing U.S. congressional documents, the deliberations of state Constitutional Conventions, and other historical records. In 2007 he received the Public Access to Government Information Award from the American Association of Law Libraries and in 2011 was named to the Fastcase 50 as one of the country’s “most interesting and provocative leaders in the combined fields of law, scholarship and technology.

 

by G. Burgess Allison

 

 

The pioneer is a curious thing.  In the Old Days, pioneers were pretty easy to understand: There’s a mountain way over there that nobody’s crossed before—why don’t we cross it and see what’s on the other side?  But as we tamed our various geographical wilderni, pioneers had to tell much more difficult stories: No seriously, we’re gonna use electricity to talk to each other.  But of course we’ll have to hook up Really Long Wires between every building in the country.  (Well, until we switch to fiber.)

Cornell’s Legal Information Institute stands as one of those pioneers—one that was faced with telling a difficult story to a generally skeptical and plainly technophobic audience:  

No seriously, there’s this thing called the Internet.  (And—we’re off to a rocky start already.)  It’ll give us the opportunity to radically transform access to information of significance to the entire legal profession.  

Really?  Like Lexis and Westlaw?  Because we have that already.  

No, no, think broader than that.  And access will be free.  

Free?  Who’s gonna do headnotes and Key Numbers for “all information” … for free?  

Oh man, you just don’t get it.  The whole world is gonna change.

No I don’t.  Call me when the world has changed.

Here’s the thing about pioneers.  First and most importantly, after exploring the wilderness, after falling into traps and digging themselves out again, after making mistakes and learning lessons the hard way, they come back to the rest of us and tell everything!  Pioneers suffer all the personal pains of trailblazing, then return with the stories and findings, and with just a little bit of nurturing tell you exactly how to avoid all the difficulties.  With a tiny amount of encouragement, they’ll even offer to go out again and guide you along the way.

25 years ago, that’s exactly what we needed.  Tom Bruce and Peter Martin had the vision to see transformative change over the horizon, then set up shop to provide a home for experiments and new opportunities.  The LII was built to explore and try things out.  Some of those things would succeed, some would fail—but as we watched and followed the LII we learned that each effort was rolled out with a genuine enthusiasm and an open mind for the possibilities.  Don’t get me wrong, the Internet is not a judgment-free zone where every player wins a trophy.  This is an ENTJ wilderness with an embarrassingly-high score in Judging.  Technologies that don’t make it get pushed aside in a heartbeat.  Of course this is difficult for a laboratory like the LII.  Intellectually, you want to give each new technology time—time to show what it can do, time to make mistakes and attempt corrections, time to mature.  But realistically, tempus fugits faster on the Internet than anywhere else—the Internet does not embrace patience.  Any more than the legal profession embraces change.

Speaking of which … while the profession has well earned its reputation for resisting change (cf. IBM mag card typewriters), that does not mean the entire profession stuck its head in the technological sand.  Indeed, as an occasional speaker at the American Bar Association’s annual TECHSHOW conference, I was stunned at the audiences we drew on Internet-related topics: we filled the hallways when they put us in a smaller room; and we still went SRO when they put us in a bigger room.  So high was the enthusiasm (and so compelling was the pioneer spirit to share what people had discovered) that some already-robust panel discussions turned quickly into even-more-robust audience discussions as discoveries and new web sites were shouted from the audience.  The topic became lightning in a bottle.  One of the most popular programs at TECHSHOW became Sixty Sites in Sixty Minutes.  The excitement was palpable.

Certainly I was excited about what was happening as well.  In my own case, I was fortunate enough to have an outlet in the column I wrote for the ABA’s Section of Law Practice, Technology Update.  I tried, ever so hard, to explain to my readership just how big a change was coming.  The responses I got showed an intense level of interest, but a continued lack of information.  That in turn led to writing The Lawyers Guide to the Internet—which included Erik Heel’s groundbreaking list of online legal resources, The Legal List, and Lyonette Louis-Jacques’ list of law-related discussion groups, Lawlists.  While Lawyers Guide barely scratched the surface of Internet basics, it became the best-selling title in the ABA’s book publishing program.  Interest was high.

Two quick notes about Lawyers Guide:  First, it speaks volumes about how far we’ve come that Erik’s Legal List could actually contain every law-related web site and online resource.  Second, the first drafts of Lawyers Guide didn’t include this “new” technology called web sites—they hadn’t been invented yet.  They were added during the review of proof pages—not normally the time you would make such a significant change (with sincere gratitude to the ABA book program).  The only screen shot of a web page in the book came from the first and most prominent hypertext-enabled law-related web site.  At www.law.cornell.edu.

The LII was site #1 in what I called Burge’s Bookmarks.  And it was featured so many times in the Sixty Sites programs that we eventually retired it to Hall of Fame status—to make room for sites and capabilities that were newer and less well-known.

The LII was, and remains, the best of the wilderness.  A place where pioneers are welcomed, to experiment and try things out.  A place where the Rest Of Us can come and see what the pioneers are up to.  And a place where the pioneers are so excited about what they’re doing that they just can’t help but share what they’ve learned.

Thank you LII, thank you Tom and Peter … now back to work, there’s so much more to be done!

I love technology. 🙂

G. Burgess Allison is a Fellow in the College of Law Practice Management and is an active member of the American Bar Association’s Law Practice Management Section (LPMS). He wrote the “Technology Update” column in Law Practice Management magazine for 18 years, and authored “The Lawyer’s Guide to the Internet.”, the best-selling publication in the history of the ABA’s book-publishing program. He has served on the Council for LPMS, and as Publisher and Technical Editor for LPM magazine. Burgess has a J.D. from the University of Michigan and a B.A. from the University of Delaware.  Prior to his retirement,  he was the IT Director for MITRE’s Center for Advanced Aviation System Development (CAASD).

While open and free access to American judicial opinions has progressed substantially over the last few years, very little attention has been given to the state of access to administrative legal information.  Maybe Tom Bruce did not ask kindly enough in 2013 when he wrote “Dear Federal Agencies … put your goddamned ALJ Opinions Up” in this post. In any case, three years later, the situation is still more or less the same: administrative decisions rendered by both ALJs and agencies are not systematically available online, and when they are it can be extremely difficult for third parties to automatically agglomerate them for reuse.  This situation prevails at both the federal and state levels.

This context explains my enthusiasm for the new decision search engine recently deployed by the Washington Public Employment Relations Commission (Washington PERC) with the help of Decisia by Lexum.  The Washington PERC is the Washington State agency with jurisdiction over public sector labor relations and collective bargaining in Washington.  Like many agencies it renders several types of decisions, which were previously scattered over different sections of its website – some with search capabilities and some without – making them difficult to discover.  Understanding that providing useful access to its decisions is part of its mandate, and that online access is the only thing that really counts today, the Washington PERC decided to invest some resources (a very reasonable amount in fact) in enhancing the usability of its online decisions.

The new Washington PERC decisions website complies with many of the best practices recognized for decision publishing:

  • Self-publishing of full text decisions

The staff at the Washington PERC has full control over the content of its decisions website via a web-based interface. Publishing is not relinquished to any third-party commercial publisher that could require some kind of exclusivity in exchange for its input.  It enables online publishing of the most authoritative version of the full text of decisions.

  • Timeliness

Since the agency is in complete control of the publishing process, it can make its decisions available to its stakeholders as soon as they are rendered.  Any error in the body of a decision can be fixed in a matter of minutes by the registry clerks.

  • Comprehensiveness

The Washington PERC has invested effort in making sure that all of the decisions it has rendered since the mid-‘70s are available on its website, turning it into an historical repository.  Thus, serious legal research can be undertaken from the new website without any fear of missing part of the material.

  • Accessibility

The technology used for the Washington PERC decisions website is designed to facilitate access for individuals with disabilities by being compliant with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA of the World Wide Web organization.

  • Provision of both HTML and PDF versions

Decisions are provided in both HTML and PDF formats.  The HTML version enables the provision of advanced search functionalities and highlighting of search hits in the body of decisions.  The PDF version preserves the appearance of the original file (a scan copy of the signed version is provided whenever available) and facilitates printing.

  • Navigability

The Washington PERC decisions website can be browsed (or crawled) by decision date or decision title and its URL structure is SEO-friendly.  This makes the content “discoverable” by both human researchers and web robots operated by third parties interested in reusing the data.  On top of that Decisia also features a RSS feed of recently published material and an API providing a machine readable version of all content.

  • Full-text searchable

A powerful search engine supporting Boolean queries, proximity operators and wildcards enables users to undertake advanced searches in the complete body of all decisions.  Users also benefit from an auto-completion feature providing quick access links to exact matches and a spell-checker that proposes alternative queries in case of typos or errors.

  • Multi-criteria search tools

Advanced database search is also facilitated by the availability of eight additional fields that can be queried individually or in conjunction (decision number, date, parties, decision-maker, case type, appeal status, statute and collection).

  • Citation availability

Finally, each decision is provided with a unique medium neutral citation by the agency itself, for example “Decision 12563-A (PECB, 2016)”.  This type of citation enables the identification of individual decisions without referring to any specific publisher.

In the end, all of this should provide positive outcomes on two distinct fronts:

  • Enhanced access for those directly affected by Washington PERC decisions

Washington State union members, employers and their representatives will undoubtedly be the first to benefit from this enhanced access to decisions on public sector labor relations and collective bargaining.  Without a doubt, making it easier to find how previous conflicts were resolved significantly contributes to Washington PERC’s mandate of assisting parties in resolving labor-management disputes.

  • Consolidation of the field of law under the jurisdiction of the Washington PERC

Whether Washington PERC decisions are considered to be precedential or not, the fact remains that they are the only sources of information about past conflicts resolved in this niche area of law.  By making sure this information is available in a format useable by all, the Agency is contributing to the development of the legal field in which it operates while at the same time promoting its competence as a decision-making body.  As a consequence, the authoritative status of its decisions is bound to be enhanced over time.

Considering the overall state of online access to administrative decisions, one can only hope that this example will inspire other agencies and ALJs to follow suite and implement adequate decisions websites.  The Washington PERC is only one agency within one state, but its latest initiative at least has the merit of demonstrating how easy it can be to publish administrative decisions the right way.

Pierre-Paul Lemyre is the Director of Business Development for Lexum, Inc., a legal informatics company in Montreal.   Lexum provides the technology and publishing infrastructure for CanLII, the Canadian Legal Information Institute.

 

[ This post was contributed by Daniel Poulin, the founding director of CanLII, the first open-access publisher of law outside the United States, and a good friend of ours for many years ].

The Origins

In the eighties and nineties, the nascent Internet was closely connected with a culture of sharing. In those times, sharing did not meant “sharing economy” in today’s sense (Airbnb, Uber, etc), but making something available for free on the Internet. The dream was that over time even more things would be available for free and that everybody would benefit from it. It is the context in which I personally became interested in making Canadian law accessible for free on the Internet.

My first models were FTP sites accepting anonymous connections. I vaguely remember one at Stanford giving access to computer fonts and executable programs. I thought that the same approach could serve legal purposes and I was not alone thinking so. Indeed, at the beginning of the nineties, several American university professors, researchers and technology specialists started to use the Gopher technology to publish legal documents, generally case law collections. These offerings were not necessarily up-to-date or coherent, to say nothing about being complete. We were nevertheless in awe to discover that legal information could be made freely accessible as simply as that. I decided to do the same at the Centre de recherche en droit public (CRDP) of the University of Montreal and I set up a Gopher server.

I was started, yet the real epiphany for me was a presentation by Peter W. Martin and Thomas R. Bruce about the Legal Information Institute in fall 1992 in Montreal. Even better than a Gopher site, they were developing a World Wide Web site and they were ambitious. This was exactly what I wanted to do. I briefly met with them after their talk. I remember that my worries about converting decisions in HTML were brushed off by Tom in the offhand manner he always had with perceived technical difficulties. I was not alone in being impressed the LII work. As a matter of fact, in the following years, Internet publishing started adding up in American law schools (see Fig. 1).

 

Fig 1: Screen shot of the CRDP Gopher server circa 1993 listing legal Gopher sites

However the general enthusiasm for legal publishing did not last long. By the end of the nineties, most of these initiatives had been abandoned, although the model set by Peter W. Martin, Thomas R. Bruce and their small team at Cornell remained, and had also found followers abroad, in Canada and Australia and, few years later, in the UK.

A web server was launched by Lexum at the U. of Montreal in summer 1994 to publish the decisions of the Supreme Court of Canada. In 1995, the Australasian Legal Information Institute (AustLII) was set up in Sydney and they soon joined in with a web server as well. In retrospect, it seems that these three initial teams, which are still active today, LII, Lexum and AustLII were all characterized by a mix of research activities, technical developments and publishing. The pure play publishers in law schools probably never found a way to obtain the institutional and financial support required to keep going.

At the turn of the century there were a handful of groups in academia who were actively exploring the potential of the Internet to serve the law and were maintaining free access to law resources. This was the nucleus which was to grow and become the Free Access to Law Movement. Soon BaiLII, PacLII, HKLII and CyLAW and several others were to follow the LII model and start publishing.

The Evolution of LIIs

The approach initially developed by the LIIs, continued and further developed by several other academic groups, was apparently taking off. It was already successful in several common law countries. Colleagues in various European countries were starting to pay attention to the LII model. The older and better-established LIIs were involved in empowerment projects aiming at establishing free access in developing countries. We started to envision a constellation of LIIs covering the world. At the Law via the Internet Conference in 2002, a founding document was drafted (the Montreal Declaration on Free Access to Law) and an informal organization of legal information institutes, the Free Access to Law Movement, was established to further develop the LII model and to reach out to all those interested in maximizing access to public legal information.

More than twenty years later, taking stock of progress made, we can only note spectacular changes in many countries. In Canada, the Canadian Legal Information Institute (CanLII) now constitutes the first source of legal information for legal professionals. CanLII will soon have 2 million decisions published, frequently in both French and English. All statutes and regulations enacted over the last 15 years from all fourteen Canadian jurisdictions are also available. According to a survey of legal professionals prepared for CanLII in 2012, 56% of respondents start their legal research on CanLII. Four years later, CanLII’s usage statistics doubled again.

Beyond CanLII, to understand the strength of the Canadian free access to law system today, one must consider the favorable policies adopted by the Canadian Judicial Council and subsequently implemented by all Canadian courts. First to be noted there is the adoption of a neutral citation system. The existence of an authoritative way to cite judgments outside the privately-owned sphere of commerce now constitutes a central element of the legal information system in Canada. Courts add a citation they own and control to all their distributed decisions (something like “2017 QCCA 16”). This identifying element pertains to the decision and must follow it. Furthermore, decisions distributed by courts are final. There are no rules precluding the citation of a court decision in a counsel’s authorities beyond the principles of Stare Decisis as they apply in Canada. As a result, all court decisions, taken from a court’s own website, from CanLII or of course from a law report can be cited in court when relevant. Since decisions’ paragraphs are numbered, pin-point references are available. Today, counsels mix references to law reports and to CanLII in the authorities they submit to a court, and judges do the same in preparing their reasons for judgment (See Fig. 2).

Fig 2: Use of citations to CanLII (based on neutral citation) in a decision from the Ontario of Court of Appeal, 2015 ONCA 495 (CanLII)

The outlook is similar for Australia. Today, clearly, AustLII is the main outlet for case law in Australia. It must be recognized that the principals at AustLII were the first to establish almost country-wide comprehensive free access in 1997. It took four more years to reach that stage in Canada. Cornell’s LII demonstrated how the law can be published for free, but it is AustLII’s team that showed how this model can be expanded to its full-scale.

Several other legal information institutes are now well-established and would call for a more complete description. Unfortunately, such a description goes far beyond what is possible to do in a short blog post. SafLII and AfricanLII are superb achievements in improving access to legal information in Africa, and both are developing the legal information institute approach in conditions difficult to imagine for a Canadian living in Montreal. PacLII is doing similar work to serve the needs of some twenty developing countries in the South Pacific. BaiLII, the British and Irish Legal Information Institute, would also merit being more fully described here, for its very small team is maintaining a good offering with very limited resources. CyLAW, established in collaboration with the Cyprus Bar Association is illustration of competence and institutional viability in a smaller state. Other extremely valuable initiatives can be found on the Free Access to Law Movement web site.

To sum up, the pioneer work done at Cornell 25 years ago led to the establishment of viable, efficient free access to law resources in several countries, especially countries belonging to the common law tradition. However, the full–fledged internationale of LIIs has never materialized. Many factors can contribute to explaining that. First, in countries of the continental law tradition, case law plays a less central role as a source of law, the publication of legislative material is often taken in charge by the legislative authority (which is not a bad thing), and doctrinal comments and treaties play a much larger role. Altogether these differences have made the development of a LII more challenging. Second, most of the LIIs which reached sustainability started in universities; many are still attached to academia. One must admit that such academic ventures are more valued (or face less prejudice) in North America and Australia than, let’s say, in France. Third, Martin and Bruce were — and still are — “entrepreneurs”. They were doing whatever was needed to finance their LII (consulting for government bodies or the industry was not out of question), they were taking risks and they were persevering. The principals at AustLII, SafLII and Lexum were venturers too (even swashbucklers for some). Some deans could have been less understanding in accepting the activism required to maintain an LII. A related and final ingredient required for survival and growth was the capacity to obtain the required financial support. In this regard, all of us in developed countries were privileged. In the developing world, international development organizations supported some LIIs for a limited time but the end of their funding brought many free legal information concerns to shut down their servers.

The Future

The next question is to try to figure where all this is going: the LII at Cornell, the other LIIs, the Free Access to Law Movement. Divination is not my specialty, but I will try to single out some of the results of the last 25 years that appear to be more durable and mix them with observable trends today which may contribute to determining the future of the free access to law idea.

The very first thing to say is that governments and courts are much more present and active than before. For instance, in all Canadian jurisdictions, statutes and regulations are freely accessible on the web and most courts and tribunals publish their decisions on their web site. Commercial legal publishing has gone through a major transformation over the last twenty years: most publishers specializing in case law reports have disappeared or been acquired by bigger competitors. The survivors linked to major global publishing groups are bundling all they have, such as jurisprudence and various doctrinal writings, case law and legislation, and they offer integrated information products by practice domain. This kind of offering finds takers and business seem to be good. Finally, free access to law seems to have found its footing. CanLII’s funding is provided by the legal professions which obtain through CanLII a national common legal library serving their missions to ensure the competence of their members and to serve the public.

To conclude, let’s say that free access to law is possible and sustainable. Capture and control of official legal information by private interests is avoidable. The well-established nation-wide systems in Canada and Australia, to name only these two jurisdictions, demonstrate that trustworthy, efficient publishing of law is compatible with public domain status and that public legal information can be made accessible for free.

Technical standards are key. The adoption of neutral citation and related policies by the courts played a significant role in ensuring that country-wide free access to law publishers, such as CanLII and AustLII, achieved their potential. More standardization would help deliver even more benefits.

Funding and benefits can be linked. Canada with its communist public health system is sometimes perceived as a middle-of-the-road society; not squarely socialist like those small countries in Northern Europe, but not entirely liberal either. Then, go figure, CanLII is privately funded by the legal professions and operated under contract by a for-profit company, Lexum. The reason private interests can serve a social mission is that those who pay are those who get the most out of the benefits. The business of the for-profit company is to help make the law accessible, not only as a service provider to CanLII, but also through all the other products it sells.

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Since inception, Cornell’s LII has favored quality over quantity. LII’s siblings, Lexum (then CanLII), AustLII and BaiLII, and later on PacLII and SafLII, have gone for volume, to make a difference in access to law in their respective countries. This is not to minimize the practical significance of Cornell’s LII: it has made a difference too, but not the same way. Instead of trying to offer comprehensive access to USA law, which would have been an overwhelming objective, the principals at the LII decided to put their talent into achieving excellence within the more defined boundaries of specific collections, such as the US Supreme Court decisions, the US Code and now the Code of Federal Regulations. These are not tiny corpuses. All are significant bodies of law heavily used not only in the US but abroad as well. Even though other legal information initiatives produced innovations, none aside from Cornell’s LII put knowledge development as the central product of their activities. Even 25 years after starting, LII is still on the edge, figuring how to accelerate the development of a legal semantic web. Beyond the fact that they were the first LII, this constant contribution to knowledge may be the real reason for the ongoing influence and prestige of the institute established 25 years ago by Peter and Tom.  

Twenty years later, the model initiated at Cornell has flourished. Members of the LII family have found their own ways. Looking at the global picture, one can only be pleased to see how an idea born in academia, and in large part at Cornell Law School, has influenced many legal information systems for the better. Even more surprising, it seems that we have not yet seen the end of it. The Cornell LII remains, after all these years, a hotbed of innovation with friends all around the world.

Bon anniversaire et amitiés au LII de la part de nous tous chez Lexum,

Daniel Poulin is the founding director of CanLII, the Canadian Legal Information Institute.  He is widely known for innovation in both legal publishing and in the business apparatus needed to sustain open-access efforts over the long term. He is now Emeritus Professor of the Law Faculty of the University of Montreal, and President of Lexum Information Juridique, a legal-information technology company spun off from his original research group at the University of Montreal.

[Note:  the second post in our “25 for 25” series is from Peter W. Martin, the LII’s founding co-director,  and former dean of the Cornell Law School.  Peter is, as well, a pioneer in the use of computers in law teaching, where he was the first to teach for-credit distance-learning courses (in copyright and Social Security law) across multiple institutions — another, less well known, LII first.  He is also the author of the immensely popular online guide, “An Introduction to Basic Legal Citation“.]

Tom Bruce has explained how he secured the Sun computer that launched our Internet escapades. I’ve been charged with adding further detail to the LII’s origin story.

Honesty compels a confession of how unclear we were at the outset about the role the Internet would play in our collaborative enterprise, but my files do contain notes on a January 1992 talk heralding the publication potential of the Internet. The venue was the annual meeting of the Association of American Law Schools; the presenter, Mitch Kapor, then chairman of the Electronic Frontier Foundation.

Three previous years spent designing and building an electronic reference work on Social Security law had persuaded me that:

  • law publishers were not reliable partners for such novel endeavors;
  • hypertext (not present in either Westlaw or Lexis at the time) had enormous value when applied to legal materials;
  • electronic media had the potential to erode barriers that had limited law schools to the role of consumers of information products; and
  • a zone of digital innovation could be established within a U.S. law school with only modest amounts of external funding.

A New York non-profit, the National Center for Automated Information Retrieval or NCAIR, spending down funds generated by the establishment of LEXIS, had supported my Social Security project. In April 1992, with the endorsement of Dean Russell Osgood, Tom and I submitted a proposal to NCAIR seeking a handsome sum for establishment “of an institute of legal information technologies” at Cornell. At NCAIR’s request, we scaled back our multi-year proposal and asked only for start-up funds. Critically, those included salary monies to buy Tom freedom from his duties as the school’s director of educational technologies. Upon securing that funding, we declared ourselves co-directors of an institute – coining a name that has stuck for 25 years and has, as Tom notes, been taken on by many others.

The two labels proved to be startlingly important. To the external world “institute” suggested significant scale and permanence. Within the academic environment that surrounded us – where boundaries of academic discipline and status framed most activity – “co-directors” expressed a partnership that straddled both, making possible the most exhilarating and fulfilling collaboration of my career.

The agenda we sketched for NCAIR included disk publication of important U.S. statutes (electronic course supplements) and experimentation with use of the Internet as a mode of electronic publication and exchange. Unquestionably, we did not anticipate the pace, scope, or longevity of those experiments. Much of what followed was a consequence of fortuitous timing. Looking back, one can see that by 1992 several critical factors had aligned.

First, thanks to LEXIS and Westlaw, U.S. legal insiders (lawyers, judges, legislators, and participants in legal education) had grown familiar with computer-based legal information.

Second, the bodies from which legal texts emerge – courts, legislatures, administrative agencies – had begun using computers in drafting and revision. Most continued to consider the resulting word processing files simply a more efficient means of producing print, but some offered journalists, lawyers, and interested others dial-up access to the digital originals. In 1990 the US Supreme Court took a further step, distributing its judgments electronically on the morning of release to a small number of redistributors. A dozen or so media companies and law publishers subscribed. But so, too, did one university, Case Western Reserve, placing the decision files on the Internet at an ftp site. This was a far cry from effective public access. To retrieve the syllabus and opinions in a specific case one had to have a dial-up connection to the Case Western site or be part of the scientific community then connected to the Internet. One also needed to know the docket number, download multiple files, and have compatible word-processing software.

Nonetheless, the availability of primary legal texts in digital format straight from the source and unencumbered by copyright (another favorable factor) spared electronic publishers, including upstarts like us, the cost of digitizing print – a huge expense burdening early legal database research and LEXIS and Westlaw during their first decades. Together with the spread of PCs and the emergence of CD-ROM as a high-capacity distribution medium, this opened the U.S. legal information market to a disruptive wave of fresh competition.

Disk distribution offered important functionality, including hypertext and copy and paste, that the major online systems did not then deliver. Software exploiting this potential had appeared by the early 1990s. By 1992 work was underway to bring the best of them to a scrollable graphical user interface, capable of displaying and printing legal documents with all the information carried in print by font size, style, graphics, and layout. This development was in turn made possible by Microsoft’s release, only a year and a half before, of Windows 3.0.

Neither the major legal information vendors nor U.S. public bodies responded nimbly to the opportunities opened by disk distribution or the Internet. And that created space for our uninhibited, experimental non-profit.

We ventured into that space during the summer of 1992, with a handful of disk publications and the Gopher server Tom has described. Gopher could not, however, deliver important features we had been able to realize in the LII disk publications. It was a desire to bring the quality we had achieved on disk to the Internet that led us to html and the Web in early 1993. Way back then, the Web, also in its infancy, was the tool of a technical community that worked on UNIX machines that had high bandwidth connections to the Internet. Our principal audience as we then conceived it consisted of legal insiders working with PCs and dial-up connections. For them no Web browser existed nor was one in sight. So Tom set to work and created the first Windows-based Web browser, Cello.

By then the infrastructure that would allow the explosion of the World Wide Web was in place. The capacity and speed of the Internet’s backbone had just been dramatically improved. Congress had removed the ban on commercial traffic over that backbone imposed by NSF’s “acceptable use policy,” and privatization was underway.

These developments put distribution of legal information to a broader public within reach, but only those who were aware of and had access to the Net. In 1992 and 1993 that was a small population. During 1992 the word “Internet” appeared in only twenty-two New York Times articles and not once in the American Bar Association Journal. In December 1993, when the product “Internet in a box” was announced, estimates of Internet users had climbed into the 15-20 million range (a ten-fold increase over the course of only a year or two). By then the LII was an established Web destination, and Tom and I had begun to appreciate that the public that valued our growing collection of legal information was far broader than the set of legal insiders we initially had in mind.

As early as 1995 all the ingredients that enabled our initial experiment to germinate, grow, and reach a global audience had come together. Although the LII enjoyed significant first mover advantage, the period since then has been filled with repeated challenges and hard choices – as public bodies, commercial entities with business plans that incorporated public access to legal information, new search engines and other finding aids crowded into the sector the LII once shared with only a few others. Casualties furnished a steady reminder that in this rapidly changing environment, survival, let alone impact, could not be taken for granted. Long gone, for example, are the fine treaty collection hosted by the University of Tromsø, the index to federal agency material offered by Villanova, and Indiana’s law meta list. In some cases disappearance was the result of being displaced by something better, in others of having attempted too much, and still others of shifts in allegiance or priorities of key personnel or the host institution.

Successfully threading a path through these and other obstacles, the LII has had to address a set of critical and recurring questions, concerning:

  • the institute’s relationship with Cornell;
  • whether to work in consort with any of the increasingly numerous commercial and public players in this field, and if so on what terms;
  • how to staff, organize, and fund expansion in scale and longevity beyond the initial experiment; and
  • how to continue to innovate while maintaining the information services essential to holding and growing the LII’s audience.

As the years have gone by, these questions have not grown less difficult. In the 13 years since retirement removed me from the founding partnership, Tom and his team have addressed them with such success that I have high confidence that this venture, begun so long ago, will continue to break fresh ground, while meeting important public needs, long past this 25th anniversary.

Peter W. Martin, the Jane M.G. Foster Professor of Law, Emeritus, at Cornell, co-founded the Legal Information Institute with Thomas R. Bruce and served as its co-director until 2003.

Raise your hand if you’ve heard (or said) a variation of one of these tired truisms: “Politics is dominated by lobbyists and spending.” “Policy making has degenerated into a glorified yelling match.” “Our country has never been more polarized.” “Today’s online communities foster echo chambers of the like-minded rather than fora for discussion.”

Is your hand raised? Because ours certainly are.

The only thing anyone can seem to agree on today is that the current U.S. political system is broken. We’re mired in a confluence of corporate spending, ugly discourse, and voter voicelessness.

LexPop provides an open public platform for tackling these problems.

Meet LexPop

LexPop allows participants to collaborate in the creation of legislative bills — bills that are later introduced by actual legislators. At its most basic, LexPop is a Wikipedia for creating public policy. (There’s a lot more to it than that, as we’ll explain below.) In our first project, Massachusetts Representative Tom Sannicandro (D-Ashland) — one of those actual legislators we’re talking about — has agreed to introduce a net neutrality bill created on LexPop.

LexPop has two primary goals. Our first goal is to give the public a voice. We hope to provide a space for ordinary people (i.e., people who can’t afford to hire lobbyists) to contribute substantively to public policy — to give their best ideas a fair hearing.

As you know, lobbyists write the bulk of the legislation coming out of our various legislatures. LexPop provides a voxlobbylane.jpgcounterpoint to the current model — a way for the public to provide legislators with voter-created model legislation. A legitimate, 21st-century democracy will invite the public into meaningful collaboration, and LexPop is part of the march in that direction.

Our second goal is to determine the best way to achieve the first. That is, a compelling movement is attempting to take governance into the 21st century, and organizations like PopVox and OpenCongress are doing great work. Several organizations and initiatives, including a government-sponsored effort in Brazil, are trying to make it possible for citizens to help write legislation. But at this point, nobody knows the best way to make the co-creation of laws a reality. Our work will contribute to figuring out what’s possible, what works, and what doesn’t.

How LexPop works

There are two ways to use LexPop. Our primary focus is on Policy Drives — where legislators pledge to introduce bills written on the site. Policy Drives are somewhat analogous to what goes on at Wikipedia, but LexPop provides more structure through the use of three specific phases:

  • Phase 1: Initial discussion, debate, argument, and research;
  • Phase 2: Outlining the bill in plain English (for those who aren’t regular readers of Vox PopuLII); and
  • Phase 3: Transforming the ‘plain English’ outline into legislative text.

voxnet-neutrality.jpgWe’re currently in the discussion phase of our first Policy Drive, devoted to the net neutrality bill Rep. Sannicandro has agreed to introduce.

A second option on LexPop is working on a “WikiBill.” WikiBills are written via the familiar, wide-open wiki model, and they offer a spot for the public to create model legislation on their own, without the three-phase structure of Policy Drives, and without a legislator-sponsor. WikiBill creators collaborate through a free-for-all process, very similar to Wikipedia — start from scratch and cobble the bill together. There’s no end to the WikiBill process, so participants can create a bill, submit it to their representatives, modify it, and submit it again.

Yeah, sounds great. But can this really work?

It’s usually at this point in the conversation that questions start coming up. LexPop, and similar projects, are largely operating in uncharted waters, and so there’s good reason to think the project sounds ambitious, perhaps even crazy. Below are a few of the questions we’re asked most often, along with our preliminary answers.

Will anyone contribute to this sort of effort?
We think so. (Obviously.)

Here’s why: Ordinary people collaborate on difficult projects online — especially online — often with great success. Take Linux, the open source operating system. The vast majority of people who work on Linux aren’t paid; they’ve incrementally created it in their spare time.

Are you reading this blog on Firefox? Well, guess what? Your browser was built almost entirely by volunteers.

At LexPop, we’re asking people who are passionate about certain issues to give some of their free time to developing better policy, in the same way engineers have asked them to help develop software. Sure, it will be complicated, but people are smart, and given the right opportunity and tools, they’ll be able to (once again) create something extraordinary.

Politics is too controversial — How can you expect people to come to consensus on one answer?
To answer this question, we like to look to Jesus — the “Jesus” page on Wikipedia, that is.

There are plenty of controversial topics addressed on Wikipedia, but it’s the pages for these topics that are often the most accurate. Wikipedians who edit the Jesus page know the topic is controversial, so they back up what they say with facts — otherwise, the crowd of users won’t allow it. Over time, the Jesus page has turned into something that most users are pretty happy about. And this is the similarity between LexPop and Wikipedia: They’re both about collaboratively writing something that isn’t perfect in the eyes of any one participant, but is better than the alternative.

Fine, but isn’t there a better model than a wiki?
This is one of the things we’re trying to figure out, and one of the things with which we need your help. We’re starting with a modified wiki (the three phases), but as we learn, we’ll adapt. A wiki allows a certain type of collaboration (the kind found on Wikipedia), but it may not be the best way to collaborate. Is the three-step process we’re using the right model, or should the phases be combined? With your help, we’ll find out — and we promise to share our findings.

Will legislation created on LexPop be representative?
We don’t claim that bills made on LexPop will be perfectly representative, and we’re not trying to make representative democracy obsolete. After a bill is written on the site, it will still have to go through the same bill-into-law process as every other piece of legislation.

voxexperts.jpgBut LexPop will certainly be more representative than the system we have now. With LexPop, non-profit organizations with valuable knowledge of an issue, passionate experts well-versed on a topic, and regular voters (Joes the Plumber, if you will) will no longer be shut out of the process. Right now, we live in a world where participation too often means a voter pours out her heart in a letter and receives a form response that the intended recipient didn’t write, read, or even sign. Our system for adding more voices to lawmaking may not be perfect, but it will be less imperfect than the current political system.

LexPop provides a first draft of legislation that’s written by people, not by lobbyists. This is our value-add; we’re opening a new channel for public participation, and taking a step toward a more legitimate and deliberative democracy.

But we need your helpvoxmeeting_brains.jpg

And we need it big time. For a project like this to work, we need participants.

If you’re interested in collaborative democracy, please get involved in the conversation. You’ll be helping even if you post only one comment. Even if you aren’t particularly interested in net neutrality, we encourage you to learn more about it on the site, and then make sure you come back when we have a Policy Drive on your favorite issue.

Also, we’d be grateful if you spread the word about our site. Like us on Facebook, Tweet about LexPop (@LexPopOrg), blog about us, or, even better, let us write a guest blog post on your site (Thanks, VoxPopuLII !).

We’d also love for you to tell us what we’re doing wrong. LexPop is perfect in neither theory nor practice. So please help us make LexPop and, ultimately, deliberative democracy better with your feedback. We have a Google Group for discussion about LexPop, or you can contact us through the website.

Coda

LexPop is a platform for public engagement and empowerment. LexPop provides a space for discussion-driven public policy and a stronger, more agile democracy. LexPop is about more voices. Add yours.

Matt_BacaMatt Baca is a joint J.D./M.P.A. student at New York University School of Law and the Harvard Kennedy School. He’s interested law, public policy, government 2.0, and the Rockies (team and mountains).

Olin_Grant_ParkerOlin Parker is a Master’s in Public Policy student at the Harvard Kennedy School. His interests include disability policy, education reform, the states of Kansas and Louisiana, and his 17 month-old daughter.

VoxPopuLII is edited by Judith Pratt. Editor in chief is Robert Richards.