by Carl Malamud
When Peter Martin and Tom Bruce decided 25 years ago to serve the law on the Internet, they were joining a grand tradition of promulgation dating back 25 centuries. The pronouncements and edicts of our governments comprise the operating system of our societies, and it is only when that code is repeatedly copied that it may take effect.
Only by promulgating the law can we have rule of law. Only by copying and annotating the law can we understand what it says and inform our fellow citizens. Only by repeating and disputing the law can we refine the principles to make the wheels of our system of justice roll down the road of righteousness.
The law does not occur in a vacuum. The law must be transmitted to others to take effect. If an edict is uttered in the forest but nobody is there to listen, it cannot be considered a law. For a people governed by the rule of law, the laws must be written prospectively, be of general applicability, and be fully promulgated. Only then do we bring justice out from the arbitrary whims of capricious individuals in star chambers into a world of law made for the people and by the people.
This tradition of promulgation dates back to the beginnings of our societies. The plebes of Rome demanded that the laws by which they were to be governed be carved into stone and wood. Copies of those Twelve Tables were displayed in every marketplace. Every student and scholar was taught to recite them from memory to their peers, to their teachers, and when they pled their causes in a court of law.
In India, the great emperor Ashoka carved his edicts on pillars and placed them throughout the empire, expressing his desire that there be “uniformity in law and uniformity in sentencing,” codifying a system of appeals, declaring amnesties, and protecting natural resources and wildlife.
Later, as the West began to emerge from the dark ages, it was priests copying the canon law for each other that began creating a more regular and predictable system of justice. This legal renaissance, in turn, encouraged the recording and transmittal of civil law and led the Four Doctors to revive the codification and glosses of Justinian to create a law school for teaching civil law.
In England, Justice Edward Coke read and wrote the law in his Institutes, a restatement (and reinterpretation) of the law that continues to resonate today. A century later Blackstone repeated the process, in an affordable and understandable restatement of the law that was used throughout rural America by up-and-coming students in log cabins to teach themselves the law.
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Peter Martin and Tom Bruce were not the first to decide to use computers and the Internet as a tool for promulgating the law, but they were the first to do so for the people. The earlier JURIS system, created by the Air Force with the Department of Justice, had a great trove of case law, statutes, and constitutions, but the government did not open it to the people. Indeed that database was soon destroyed by the Department of Justice in a misguided attempt to curry favor with corporate interests who were worried the JURIS law would co-mingle with the West law and pollute the purity of the West bloodline.
Those corporate interests, companies such as West and Lexis, had been creating mighty databases of primary legal materials for many years, but did so for the primary purpose of their own personal gain. The law to them was a property, indeed they assumed de facto ownership over huge swathes of American jurisprudence, asserting copyright, establishing monopolies, and charging extortionate rents.
Both West and Lexis provided adequate services for their times, but they were services for the rich, not for the people, and the primary pecuniary motivation of their enterprises can be readily seen today by one quick glance at their terms of service and antiquated sites. Do not doubt for a minute, this is all about the money for them.
Peter Martin and Tom Bruce set out to change that situation, a testament to their dedication to public service. They put Supreme Court decisions and the U.S. Code on the Internet, available for use without restriction, presented in a standards-compliant way that worked in modern browsers. High school classes were suddenly able to teach the seminal decisions that shaped our country. Citizens could read topical and historical cases and navigate the provisions of the U.S. Code. Lawyers and government employees flocked to the new service as well, since it surpassed what their employers provided in so many ways.
An informed citizenry is the key to our democracy. Many lawyers have felt that it is their sole and exclusive job to interpret the law, a private domain available only to them by virtue of their license to practice. This attitude has become much rarer among the other learned professions.
Doctors now understand (albeit perhaps grudgingly) that their patients are eager to learn about their medical conditions and that this practice leads to better medicine. The sciences have long been practiced by many, from highly trained professionals to eager amateurs. Many of those amateurs have made fundamental contributions to the state of human knowledge. MBAs at Goldman Sachs share the SEC EDGAR database with senior citizen day traders and college students.
Yet, despite 25 years of effort, the law in America is not widely available. In many cases, citizens are granted drastically limited access to the law, allowed to read regulations only by agreeing to onerous terms of use, and subjecting themselves to web sites with digital rights management and other technical shackles that deliberately make the law harder to read and impossible to copy.
You are allowed to see the law, but only within the confines of the walled garden, and you are continually reminded you are a guest in this private facility which you visit only at the forbearance of the purported landlords.
Even when the web sites presenting the law are adequate, all too often they are the vigorously defended monopoly of one well-heeled and well-connected concessionaire. Copies in bulk are prohibited contractually (and arbitrarily) through thickets of clickthrough boilerplate and enforced technically. These prohibitions apply to any and all, from for-profit competitors to—as Lexis puts it in its terms of use—all “non-profit or public purposes.”
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When the law stagnates behind walls, the law becomes static. The law must flow freely, it must get continually re-expressed using the new technologies and sensibilities of our day. The innovation that springs from random corners cannot happen when the law is frozen in means of expression only suitable for a prior age.
This is why we must celebrate the vision and accomplishment of the Legal Information Institute. The founders have shown a unique sense of public purpose when they made their new system available for all to use without reservation or registration.
Peter Martin has a 50-year record of public service. He was one of the only law school deans who understood that the mechanics of the law—the infrastructure of our system of justice—is just as important as the substance. In addition to his work at LII, he has been a pioneer in the mechanics of legal citation and has been a voice of clarity to the states in teaching them about vendor-neutral citation.
Tom Bruce and his contributions must equally be applauded. When he co-founded LII in 1992, the web was a different place. In addition to placing legal materials online, Tom understood that people needed to read those materials, and in those days, that software didn’t exist. When you move to the wilderness, sometimes you have to build a house before you can start farming. So he wrote Cello, the first Windows-based browser.
Tom Bruce, like me, is not a lawyer but has spent an inordinate amount of time inside the mechanics of our legal system. Before Tom joined Cornell he worked as a stage manager on major productions for groups such as the American Repertory Theater and the Lyric Opera of Chicago. Big league jobs, and highly technical. Tom discovered the Internet early, and rather than take his formidable skills to Silicon Valley to make his fortune, he has devoted the last 25 years to public service.
Copying the law—transforming the law to make it more useful, promulgating the law to lawyers and also to muggles like us who have not been raised to the bar—is an activity that one would think would get universal acclaim. But, it is more than a few greedy vendors who have objected to these activities. The bar itself has been notably reluctant to embrace the Internet and its potential.
The idea that the law can be owned by a private vendor, or that one private party might require a license from another private party before speaking the law, is an idea that (oddly enough) still has great cachet among some lawyers. Go to any meeting of intellectual property sections of bar associations, and you will find a hardened cadre of alt-© absolutists that maintain that only lawyers need to read the law and that expensive access to legal materials is a fact of life.
To these misguided souls, the law is a revenue opportunity, not the underpinnings of our democracy. They view rhetoric about the rule of law as a marketing slogan—no different than being in favor of world peace—not as the very foundation of our temple of justice. They view public property as yet another opportunity to build private fences and charge admission, not as our common heritage to be shared equally and non-consumptively by all.
I speak with some experience on this matter, having participated in the American Bar Association policy process two years in a row. Last year, I watched dumbfounded as the ABA endorsed the idea that the law should be subjected to Digital Rights Management in a misguided attempt to protect private revenue streams while providing the public with a dumbed-down version of federal regulations.
While even that modest step forward from the present situation was vigorously opposed by the standards organizations—and I will grant you that this resolution had the best of intentions by the original drafters of taking one small step forward—the resolution put the ABA firmly in favor of deliberately restricting access to the law through the use of misguided (and ultimately ineffective) technical limitations. How can you tell citizens how they may or may not read and use the law?
It was gobsmacking to me that the idea of subjecting federal regulations to Digital Rights Management was co-sponsored by the ABA Section on Civil Rights. I attempted numerous times to brief the section (of which I am a member) on the issues, but they refused to allow me to participate. After the resolution passed, I approached the Civil Rights representative to the ABA House of Delegates and asked why they wouldn’t discuss the issues with me. She responded “Because you’re not a lawyer. That’s how we do things here.” I was stunned.
This “you’re not a lawyer” attitude is all too common at the bar. I have found it in private practice, in the judiciary, and in law schools. What I have also found, however, is that the smarter the lawyer and the more senior the position, the less likely it is suffer from this kind of insularity. In the American Bar Association, for example, I found leaders such as General Jack L. Rives (the executive director) and Linda A. Klein (the past president) to be encouraging, respectful, and welcoming, to non-lawyers.
I still have hope for the bar, but I we have clearly failed to convince them of the importance of the raw materials of our democracy for them as practicing lawyers and for as citizens who own our government. We must try harder.
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I came late to the game of making legal materials available. I started Public Resource in 2007, 15 years after Tom and Peter started their work at LII. But, my work in the 1990s was in a similar vein, making large government databases such as Patent and SEC available. I ran across a similar attitude of insularity and privilege in those days.
Financial professionals felt there was simply no need for the general public, even the investing public, to have access to primary SEC filings. In the patent bar, there was an even more strident view that patents were only of interest to patent lawyers. I set out to change that.
I learned two truths putting those databases online. First, when you make an important database like this available, the number of people who will take the time to read the materials will astound you. Millions of people started reading patents. Millions of people read SEC filings. Millions of people read the LII.These are not trivial databases. I get far more hits than most government web sites and I know LII’s traffic overshadows most of the organizations they mirror.
The other thing I learned is that there is always somebody smarter than me out there. When I made databases available in bulk with no restrictions on use, others came along and started working on them, making the data more useful in ways that I could not have conceived and certainly could not carry out. When we restrict access to public materials, we prevent innovation.
The same is true with the law, and my birthday message today is that we must not simply celebrate 25 years of pioneering leadership by LII, we must ask ourselves as a country what we can do to bring this forward, to take the next steps along that road.
There is some hope. For decades, the only reasonable way to read the U.S. Code has been LII, but now the Congress has made substantial progress. Their system is not nearly as good as LII, but the Congress is trying to get there and deserve credit for the level of effort and, most of all, for shipping code.
The U.S. Code is just one instantiation of our primary legal materials. Even at the federal level, the state of our laws is abysmal. The only reasonable version of the Code of Federal Regulations is the one that the LII runs. The government has shown no interest in moving this database forward, despite the fact that federal regulations are some of the laws that most directly impact our citizens.
I speak from personal experience on this point as well. I was gratified to play a very small part in the transformation of the Federal Register at the beginning of President Obama’s first term, but I spent the next 8 years trying to get somebody, anybody, to take on the CFR. I personally proselytized the vision of a better CFR to the Office of the Federal Register, the National Archives, numerous members of Congress, numerous White House officials, the General Services Administration, and the Department of Justice.
My efforts at evangelism yielded many converts and no action and the CFR remains mired in a swamp. It is the swath of federal law that most directly effects people. I depend on LII to be able to put permalinks to the CFR in my writings, but find it incredible that there is not an official, stable, secure source from the regulators themselves.
Looking across the rest of our federal government, we see a Supreme Court that built a new web site, but still does not provide access to historical materials, such as the briefs submitted in cases, let alone the records of the lower courts decisions leading up to pinnacle of the marble palace.
Let us not even speak of oral arguments, proceedings that would be invaluable to our law schools as a teaching tool. There is no better device to teach the mechanics of rhetoric and argumentation than posting video of the best lawyers in the land arguing the most important issues before us to highest court. A few lucky law students from elite schools occasionally get a brief glimpse of the proceedings, but videos of oral arguments should be available to every law student, every lawyer, and every citizen.
In our lower courts, we see a PACER system that is absurdly expensive and so technically flawed—despite a huge recent investment of time and money in code whose most visible attribute is the obvious insularity of the programmers who wrote it—that the mere mention of the word “PACER” to a technical audience has become a laugh line. Try it. “Take my PACER. Please!” See?
Congress, despite some progress in areas such as the U.S. Code, still has low-quality streaming video for the House and a meager presence on the Internet for the Senate, an insult to the rich history of that august body. Across government as a whole, key archives, such as the full run of the Statutes at Large and the Federal Register, are sadly incomplete. The problems are even more dire at the state and municipal levels.
Let me be very clear about the tremendous progress that has been made in some quarters, particularly in the last 8 years. Our government has become much more aware of how to use computer technology. The White House had a stellar group of technologists guiding the President, and the creation of digital services in departments such as Veterans Affairs and Defense have made a huge difference. Good people work for government, and the only thing stopping them from doing better work is the willful cluelessness of their leaders.
What is equally clear is that the specific issue at hand—the availability of the primary legal materials of the United States of America—has not received the attention it needs from those charged with creating, transmitting, and administering our edicts of government. That is of course our fault for not clearly stating the importance of this mechanical issue of legal plumbing and pipes. It is clear we have not made a lasting impression, we must speak louder and more often.
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One could lay all blame at the feet of the government for the sorry state of our primary legal materials, but I believe the problem is deeper, and must be faced by the bar itself. Before we adjourn to the bar, however, I would like to spend a few words on the topic of money.
Since Tom and I both run legal nonprofits, I can tell you that when we talk one of our most consistent topics is the abysmal state of funding for organizations such as ours and the many other worthy non-profit ventures and research ventures that promulgate and work with the law.
I have spent decades in search of sustainability and the elusive magic business model. I know Tom has been on a similar quest for this holy grail. A Silicon Valley executive once told me that I needed a better business model than charity, but I put it to you that far too many enterprises that try to get into the legal “business” focus on the money and that focus has led us to where we are today. So many startups have been created only to beat a door towards the first exit.
Let me be clear, that even the most well-meaning .com startup today could not possible succeed as long as the insurmountably high wall surrounding our primary legal materials remains in place. I give you a simple example.
In our suit over promulgation of the Official Code of Georgia Annotated, we include a sworn declaration from Ed Walters, the CEO of Fastcase. Fastcase, the official provider of case law to the State Bar of Georgia, attempted to license a copy of the Official Code of Georgia Annotated and was told by the state and their vendor that they could not have a copy of the official law of Georgia “at any price.”
Fastcase has also received numerous takedowns for making the official regulations of Georgia available, and I am in court over publication of state-mandated public safety codes, such as the electrical and building codes. If you think you could a better job disseminating the law to the people you of Georgia, you will do so, as the Official Code says, “at your peril.”
As for legal nonprofits and our continual focus on money, or the lack thereof, and our failed quests for a business model. The only business model I need to see, and I believe I can speak for Tom on this matter as well, is for government to rise to the occasion, after which I can assure you I will happily close my doors and pursue other interests.
Why is money for such a service so hard to find? If you run one of these boots-on-the-ground, ops-oriented legal non profits, when you go talk to foundations, and present your millions of users and shiny public purpose, the foundations want to know why the legal profession is not more supportive, why the bar is not funding our operations.
The foundations want to know why governments are not doing the tasks that we are doing. The foundations are always happy to fund hackathons, prototypes, and symposia, but infrastructure is a very, very tough sell. They don’t see it as their job. They would rather fund what they see as innovation than what they see as infrastructure.
This is an issue that will never be fixed unless the bar faces the fundamental fact that the legal profession has not risen to the task. We can blame government for not providing our primary legal materials in an adequate form, but government will never do so until the bar demands change. The bar has not done so.
Let me be clear, there are some amazing and well-meaning lawyers out there, I do not wish to castigate the entire bar. Nine law firms defend my efforts to clear title on public goods on a pro bono basis, booking millions of dollars in free legal help. There are many lawyers in private practice that make a point of making contributions to LII every year.
There are lawyers in the legal information business, such as Ed Walters of Fastcase and Tim Stanley of Justia that have been stalwart supporters of both Tom and myself, donating generously of their time and their money. It has been a true joy to have spent a decade working with legal rebels such as them.
Those good and noble lawyers, unfortunately, are the exception, not the rule. The American legal profession as a whole has shown little interest in making our primary legal materials more readily available for themselves, let alone the public. Law as a commodity to be sold instead of a public good to be shared is an attitude one finds all too often not just in organizations such as the American Bar Association, but also in institutions such as the Judicial Conference and the Administrative Office of the U.S. Courts.
The lack of interest in public access is coupled with a lack of interest in technology, a lack of interest all too apparent when you look at technical rules adopted by the courts. I’ll give you a simple example. If you file a brief in court, you must double-space your brief. I’ve worked professionally as a public printer for many years, and when I think of double space, I think of a precise concept defined in terms of leading.
The courts don’t do that: they insist that “double space” is a setting in Microsoft Word and it turns out that Microsoft’s definition of what is double spacing changes over time, is not public, and is not accurate. What is amazing is that concepts such as “double space” and “number of words” are practically the only technical standards in place for our courts.
If a court is willing to define length limits based on some proprietary, secret algorithm in a software package, it is no surprise that they are not able (or willing) to define technical standards that make any sense. Technical specs for the format of a PDF file (let alone filing an HTML file!), meaningful rules and systems for the protection of privacy, facilities for bulk access, unique IDs for documents, digital signatures, and meaningful notification of updates to court dockets and their contents are all sorely lacking or non-existent. A very nice article has been recently published on this topic by Colarusso and Rickard (DOI:10.17605/OSF.IO/AWBDX) and is worth a read.
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Tom Bruce and Peter Martin stepped up 25 years ago and did what government should have been doing: the dissemination of primary legal materials on the Internet. I will grant you that 25 years ago, this was not something most governments viewed as their job, though I will note that DOJ had the JURIS system already working and could have easily made it available to the public. The job Tom and Peter took upon themselves was pioneering and visionary.
For that brave and early jump from the safety of their ivory towers into the infinite sea of the Internet, Tom and Peter and their amazing LII staff deserves our profound thanks. They deserve more than our thanks, though. They deserve our deeds.
It took 25 years for Congress to start doing a decent job on the public face of the U.S. Code. Nobody in Washington has even started looking at the Code of Federal Regulations in a serious way. We need to continue to support LII, to remind our government that they are not yet doing their job, and to make sure that LII can continue to operate.
We must also tell the bar—repeatedly and in great detail until their eyes cease to glaze over and they begin to see the light—that promulgation is the key to the law. We must convince them that their apathy is bad for the legal profession, bad for America, and bad for democracy. The fact that the bar does not “get it” is our fault as much as theirs. We must redouble our efforts at persuasion. We must try much harder.
As a people, we must all read the same regulations, the same court decisions, the same ordinances and statutes, so we lay down a common baseline from which to govern ourselves. From that common understanding, we can dispute the law, we can improve it, we can understand our rights and obligations under our system of jurisprudence.
The Legal Information Institute plays a crucial role in this fundamental aspect of our legal system. We should all strive to do what they do. If you want justice, it is up to you to help make justice possible. Only if the law rolls like the waters can justice flow like a mighty stream. We must all speak the law we wish to hear.
Carl Malamud is the president and founder of Public.Resource.Org. He has been enjoined by judges from speaking the National Electrical Code, the Official Code of Georgia Annotated, and the European safety standard for baby pacifiers.
