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Constitutions as Summer Reading

comparative, Digital law libraries, Electronic legal publishing, free law data, Legal text processing, Linked Data No Responses »

Oct 012015

Two years ago my collaborators and I introduced a new resource for understanding constitutions. We call it Constitute. It’s a web application that allows users to extract excerpts of constitutional text, by topic, for nearly every constitution in the world currently in force. One of our goals is to shed some of the drudgery associated with reading legal text. Unlike credit card contracts, Constitutions were meant for reading (and by non-lawyers). We have updated the site again, just in time for summer (See below). Curl up in your favorite retreat with Constitute this summer and tell us what you think.

Some background: Constitute is built primarily for those engaged in the challenge of drafting constitutions, which occurs more frequently than some think (4-5 constitutions are replaced each year and many more are revised in smaller ways). Drafters often want to view examples of text from a representative set of countries – mostly so that they can understand the multiple dimensions of a particular area of law. Of course, scholars and educators will also find many uses for the data. After all, the resource grew out of an effort to study constitutions, not write them.

How does Constitute differ from other constitutional repositories? The core advantage of Constitute is the ability to view constitutional excerpts by topic. These topics are derived from the conceptual inventory of constitutions that my collaborators and I have been developing and refining over the last ten years as part of the Comparative Constitutions Project (CCP). The intent of that project is to record the content of the world’s constitutions in order to answer questions about the origins and effects of various constitutional provisions. In order to build that dataset (CCP), we invested quite a bit of time in (1) identifying when constitutions in each country had been enacted, revised, or replaced, (2) tracking down the texts associated with each of these changes, (3) digitizing and archiving the texts, (4) building the conceptual apparatus to extract information about their content, and finally, (5) reading and interpreting the texts. We leveraged all of this information in building Constitute.

We are committed to refining and elaborating Constitute. Our recent release includes some exciting developments, some of which I describe here.

Now in Arabic! Until now, Constitute’s texts have been in English. However, we believe (with some evidence) that readers strongly prefer to read constitutions in their native language. Thus, with a nod to the constitutional activity borne of the Arab Spring, we have introduced a fully functioning Arabic version of the site, which includes a subset of Constitute’s texts. Thanks here to our partners at International IDEA, who provided valuable intellectual and material resources.

Form and function. One distinction of Constitute is the clarity and beauty of its reading environment. Constitutional interpretation is hard enough as it is. Constitute’s texts are presented in a clean typeset environment that facilitates and invites reading, not sleep and irritability. In the latest release, we introduce a new view of the data — a side-by-side comparison of two constitutions. While in our usual “list view,” you can designate up to eight constitutions for inclusion in the comparison set, once in “compare view,” you can choose any two from that set for side-by-side viewing. In compare view, you’ll find our familiar search bar and topic menu in the left panel to drive and refine the comparison. By default, compare view displays full constitutions with search results highlighted and navigable (if there are multiple results). Alternatively, you can strip away the content and view selected excerpts in isolation by clicking the button at the right of the texts. It is an altogether new, and perhaps better, way to compare texts.

Sharing and analyzing. Many users will want to carve off slices of data for digestion elsewhere. In that sense, scholars and drafting committees alike will appreciate that the site was built by and for researchers. Exporting is painless. Once you pin the results, you can export to a .pdf file or to Google Docs to collaborate with your colleagues. You can also export pinned results to a tabulated .csv file, which will be convenient for those of you who want to manage and analyze the excerpts using your favorite data applications. Not only that, but our “pin search” and “pin comparison” functions allow analysts to carve large slices of data and deposit them in the Pinned page for scaled-up analysis.

Raw data downloads. For those of you who build web applications or are interested in harnessing the power of Linked Data, we have exposed our linked data as a set of downloads and as a SPARQL endpoint, for people and machines to consume. Just follow the Data link on “More Info” in the left panel of the site.

And then there is “deep linking,” so that you can export your pinned results and share them as documents and datafiles. But you can also share excerpts, searches, comparisons, and full constitutions very easily in your direct communications. The most direct way is to copy the URL. All URLs on the site are now deep links, which means that anything you surface on the site is preserved in that URL forever (well, “forever” by internet standards). Suppose you are interested in those constitutions that provide for secession (Scotland and Catalunya have many thinking along those lines). Here are those results to share in your blog post, email, Wikipedia entry, or publication. By the way, do you know which constitutions mention the word “internet?” Chances are you’ll be surprised.

So, please take Constitute with you to the beach this summer and tell us what you think. Any comments or suggestions to the site should be directed to our project address, constitute.project@gmail.com.

Zachary Elkins is Associate Professor at the University of Texas at Austin. His research interests include constitutional design, democracy, and Latin American politics. He co-directs the Comparative Constitutions Project.

VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed.

IT and the Access to Justice Crisis

Applications, comparative, Dissertations, free access to law, knowledge management, Legal information behavior, Legal information systems for pro se litigants, Legal information systems for self represented litigant, Legal knowledge management, Nonlawyers' legal information behavior, Nonlawyers' legal information needs, Pro se litigants, Public access to legal information, Self represented litigants 2 Responses »

Aug 012010

This post explores ways in which information technology (IT) can enhance access to justice. What does it mean when we talk about “the access to justice crisis,” and how can information technology help to resolve it? The discussion that follows is based on my 2009 book, Technology for Justice: How Information Technology Can Support Judicial Reform, particularly Part 4, on the role of information and IT in access to justice.

The normative framework for access to justice

International conventions guarantee access to a court. Everyone is entitled to a fair and public hearing by an independent tribunal in the determination of their civil rights and obligations or of any criminal charge against him or her, according to The International Covenant on Civil and Political Rights (article 14) and regional conventions like the The European Convention on Human Rights (article 6). In practice, the normative framework for access to justice does not provide us with clearly defined concepts.

The major barriers to access to justice identified in the scholarly literature are:

Distance, which can be a factor impeding access to courts. In many countries, courts are concentrated in the main urban centers or in the capital.
Language barriers, which are present when justice seekers use a language that is different from the language of the courts.
Physical challenges, like impaired sight and hearing and motor and cognitive impairments; these as a barrier to access are an emerging topic in the debate on technology support in courts.

These first three factors are all relatively straightforward and do not strike at the heart of the legal process.

Cost, for instance lawyers’ fees, court fees and other components of the price of access to justice, in many forms, has been identified as a factor affecting access to courts. However, cost is extremely hard to research and subject to a lot of ramifications. Because of this complexity, cost will not be discussed directly in this post.
Lack of information and knowledge, lack of familiarity with the court process, the complexity of legal and administrative systems, and lack of access to legal information are commonly identified factors (Cotterrell, The Sociology of Law p. 251; Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America, p. 136). They are related because they all refer to the availability of information. They are the starting point for our discussion.

Potentially, information on the Internet can provide some form of solution for these problems, in two ways. First, access to information can support fairer administration of justice by equipping people to respond appropriately when confronted with problems with a potentially legal solution. Access to information can compensate, to some extent, for the disadvantage one-shotters experience in litigation, thereby increasing their chance of obtaining a fair decision. Second, the Internet provides a channel for legal information services, although experience with such online service provision is limited in most judiciaries. The discussion here will therefore focus on access to legal information and knowledge. Lack of information and knowledge as a barrier to access to justice is the focus for discussion in the first few paragraphs. The first step is to identify the barriers.

Knowledge and information barriers to access to justice

What are the information barriers individuals experience when they encounter problems with a potentially legal solution? We need empirical evidence to find an answer to this question, and fortunately some excellent research has been done, which may help us. In the U.K., Hazel Genn led a team that researched what people do and think about going to law. Their 1999 report is called Paths to Justice. A similar exercise led by Ben van Velthoven and Marijke ter Voert in The Netherlands, called Geschilbeslechtingsdelta 2003 (Dispute Resolution Delta 2003), was published in 2004. Although there are some marked differences between them, both studies looked at how people deal with “justiciable problems”: problems that are experienced as serious and have a potentially legal solution. Analysis of empirical evidence of people and their justiciable problems in England and Wales and The Netherlands produced the following findings with regard to these barriers:

Inaction in the face of a justiciable problem because of lack of information and knowledge occurs in a small percentage of cases.
Unavailability of advice negatively affects dispute resolution outcomes. It lowers the resolution rate. Cases in which people attempted to find advice were resolved with a higher rate of success than those of the self-helpers.
Respecting the inability to find advice: If people go looking for advice, the barriers to finding it have more to do with their own competencies, such as confidence, emotional fortitude, and literacy skills, than with the availability of the advice. In the United Kingdom, about 20 percent of the population is so poor at reading and writing that they cannot cope with the demands of modern life, according to data from the National Literacy Trust. In The Netherlands, the percentage of similarly low literacy is estimated at about 10 percent, according to data from the Stichting Lezen en Schrijven, the Reading and Writing Foundation.
Respecting incompetence in implementing the information received: Different competence levels will affect what can be done with information and advice. Competencies in implementing the information received include, for example, skills such as working out what the problem is, what result is wanted, and how to find help; simple case-recording skills; managing correspondence; confidence and assertiveness; and negotiating skills, according to research reported by Advicenow in 2005. Some people do not want to be empowered by having information available. They want assistance, or even someone to take over dealing with their problem. People with low levels of competence in terms of education, income, confidence, verbal skill, literacy skill, or emotional fortitude are likely to need some help in resolving justiciable problems.
Ignorance about legal rights exists across most social groups. Genn notes that people generally are not educated about their legal rights (Genn p. 102).
Respecting lack of confidence in the legal system and the courts and negative feelings about the justice system, Genn observes that people are unwilling voluntarily to become involved with the courts. People associate courts with criminal justice. People’s image of the courts is formed by media stories about high profile criminal cases (Genn p. 247). This issue is related to the public image of courts, as well as to the wider role of courts as setters of norms.

Information needs for resolving justiciable problems

After identifying knowledge and information barriers, the next step is to uncover needs for information and knowledge related to access to justice. Those needs are most strongly related to the type of problem people experience. The most frequently occurring justiciable problems are simple, easy-to-solve problems, mostly those concerning goods and services. People themselves resolve such problems, occasionally with advice from specialist organizations like the consumers’ unions (e.g., in the U.S., the National Consumers League). For more important, more complex problems, people tend to seek expert help more frequently. The most difficult to resolve are problems involving a longer-term relationship, such as labor or family problems. Any of the problems discussed in this section may lead to a court procedure. However, the problems that are the toughest to resolve are also the ones that most frequently come to court.

The first need people experience is for information on how to solve their problem. In The Netherlands, the primary sources for this type of information are specialized organizations, with legal advice providers in second place. In England and Wales, solicitors are the first port of call, followed by the Citizens’ Advice Bureaux. In both countries, the police are a significant source of information on justiciable problems. This is especially remarkable because the problems researched were not criminal justice issues.

If people require legal information, they primarily need straightforward information about rules and regulations. Next, they look for information about ways to settle and handle disputes once they arise. Information about court procedures is a separate category that becomes relevant only in the event people need to go to court.

Respecting taking their case to court: People need information on how to resolve problems, on rights and duties, and on taking a case to court. The justiciable problems that normally come to court tend to be difficult for people themselves to resolve. These problems are also experienced as serious. Many of them involve long-term relationships: family, employment, neighbors. Therefore, people will tend to go looking for advice. Some of them may need assistance. Most people seek and receive some kind of advice before they come to court.

In summary, information needs in this context are mostly problem-specific. Most problems are resolved by people themselves, sometimes with the help of information, or help in the form of advice or assistance. The help is provided by many different organizations, but mostly by specialized organizations or providers of legal aid and alternative dispute resolution (ADR).

Different dispute resolution cultures

There are, besides these general trends, interesting differences between England and Wales and The Netherlands. The results with regard to dispute outcome, for instance, show the following:

The Netherlands has fewer unresolved disputes, more disputes resolved by agreement, and the rate of resolution by adjudication is half that of England and Wales. It looks as if there is more capacity for resolving justiciable problems in Dutch society than there is in society in England and Wales. Apart from the legacy of the justice system where there is a propensity to settle differences that Voltaire described in one of his letters, many factors may be at work in The Netherlands to produce a higher level of problem-solving capacity. One probable factor is the level of education and the related competence levels for dealing with problems and the legal framework. The functional illiteracy rate is only half that in the United Kingdom. Another factor may be a propensity to settle differences by reducing the complexity of problems through policies and routines.

Diversion or access, empowerment or court improvement?

The debate respecting whether diversion or court improvement should come first as an objective of legal policy, has been going on for some time. These are the options under discussion:

Preventing problems and disputes from arising;
Equipping as many members of the public as possible to solve problems when they do arise without needing recourse to legal action;
Diverting cases away from the courts into private dispute resolution forums; and
Enhancing access to legal forums for the resolution of disputes.

Genn argues that it is not an answer to say that diversion and access should be the twin objectives of policy, because they logically conflict. I would like to contribute some observations that could provide a way out of this apparent dilemma.

First, user statistics from the introduction of the online claim service Money Claim Online and the case study in Chapter 2.3 of my book suggest that changes in procedure facilitating access do not in themselves lead to higher caseloads. Changes observed in the caseloads are attributable to market forces in both instances.

The other observation is that Paths to Justice and the Dispute Resolution Delta clearly found that self-help is experienced as more satisfying and less stressful than legal proceedings. Moreover, resolutions are to a large degree problem specific. A way out of the dilemma could be that specialist organizations that make it their business to provide specific information, advice, and assistance, should enhance their role. There is an empirical basis for this way out in the research reported in Paths to Justice and the Dispute Resolution Delta. Although goods and services problems are largely resolved through self-help, out-of-court settlement, or ADR, nonetheless a fair number of them still come to court. Devising ways to assist individuals in informal problem solving and diverting them to other dispute resolution mechanisms can keep still more of these problems out of court. Even in matters for which a court decision is compulsory, like divorce, mediation mechanisms can sort out differences before the case is filed. Clearly, information on the Internet will provide an entry point for all of these dispute resolution services. Online information can thus help to keep as many problems out of court as possible. All this should not keep us from making going to court when necessary less stressful. Information can help reduce people’s stress, even as it improves their chances of achieving justice. The Internet can be a vehicle for this kind of information service, too.

Taking up this point, the next section focuses on courts and how information technology, particularly the Internet, can support them in their role of information providers to improve access to justice. Two strains concerning the role of information in access to justice run through this theme: information to keep disputes out of court, and information on taking disputes to court.

Information to keep disputes out of court

An almost implicit understanding in the research literature is that parties with information on the “rules of thumb” of how courts deal with types of disputes will settle their differences more easily and keep them out of court. Such information supports settlement in the shadow of the law. Most of this type of settlement will be done with the support of legal or specialist organizations. In the pre-litigation stage, information about the approaches judges and courts generally take to specific types of problems can help the informal resolution of those problems. This will require that information about the way courts deal with those types of problems becomes available. Some of the ways in which courts deal with specific issues are laid down in policies. Moreover, judicial decision making is sometimes assisted by decision support systems reflecting policies. In order to help out-of-court settlement, policies and decision support systems need to be available publicly.

Information on taking disputes to court

If a dispute needs to come to court, information can reduce the disadvantage one-shotters have in dealing with the court and with legal issues. This disadvantage of the one-shotters — those who come to court only occasionally — over against the repeat players who use courts as a matter of business, was enunciated by Marc Galanter in his classic 1974 article, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change. Access to information for individual, self-represented litigants increases their chances of obtaining just and fair decisions. Litigants need information on how to take their case to court. This information needs to be legally correct, as well as effective. By “effective,” I mean that the general public can understand the information, and that someone after reading it will (1) know what to do next, and (2) be confident that this action will yield the desired result. In a case study, I have rated several court-related Web sites in the U.K. and in The Netherlands on those points, and found most of them wanting. My test was done in 2008, and most of the sites have since changed or been replaced. And although the U.K. Court Service leaflet D 184 on how to get a divorce got the best score, my favorite Web site is Advicenow.

Such an information service requires a proactive, demand-oriented attitude from courts and judiciaries. Multi-channel information services, such as a letter from the court with reference to information on the court’s or judiciary’s Web site, can meet people’s information needs.

Beyond information push

Other forms of IT, increasingly interactive, can provide access to court. [Editor’s note: Document assembly systems for self-represented litigants are a notable example.] Not all of them require full-scale implementation of electronic case management and electronic files. In order to be effective for everyone, the information services discussed will require human help backup. There are also technologies to provide this, but they may still not be sufficient for everyone. The information services discussed here, in order to be effective, will need to be provided by a central agency for the entire legal system. A final finding is the importance of public trust in the courts in order for individuals to achieve access to justice. Judiciaries can actively contribute to improved access to justice in this field by ensuring that correct information about their processes is furnished to the public.

In summary, access to justice can be effectively improved with IT services. Such services can help to ameliorate the access-to-justice crisis by keeping disputes out of court. The information services identified here should serve the purpose of getting justice done. They should not keep people from getting the justice they deserve by preventing them from taking a justified concern to court. If people need to go to court, information services can help them deal with the courts more effectively.

[Editor’s Note: A very useful list of resources about applying technology to access to justice appears at the technola blog.]

Dory Reiling, mag. iur. Ph.D., is a judge in the first instance court in Amsterdam, The Netherlands. She was the first information manager for The Netherlands’ Judiciary, and a senior judicial reform expert at The World Bank. She is currently on the editorial board of The Hague Journal on the Rule of Law and on the Board of Governors of The Netherlands’ Judiciary’s Web site Rechtspraak.nl. She has a Weblog in Dutch, and an occasional Weblog in English, and can be followed on Twitter at @doryontour.

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

The Recipe for Better Legal Information Services

comparative, digital law, legal research 7 Responses »

Aug 122009

A new style of legal research

An attorney/author in Baltimore is writing an article about state bans of teachers’ religious clothing. She finds one of the tersely written statutes online. The website then does a query of its own and tells her about a useful statute she wasn’t aware of—one setting out the permitted disciplinary actions. When she views it, the site makes the connection clear by showing her the where the second statute references the original. This new information makes her article’s thesis stronger. Recipe card

Meanwhile, 2800 miles away in Oregon, a law student is researching the relationship between the civil and criminal state codes. Browsing a research site, he notices a pattern of civil laws making use of the criminal code, often to enact civil punishments or enable adverse actions. He then engages the website in an interactive text-based dialog, modifying his queries as he considers the previous results. He finally arrives at an interesting discovery: the offenses with the least additional civil burdens are white collar crimes.

A new kind of research system

A new field of computer-assisted legal research is emerging: one that encompasses research in both the academic and the practical “legal research” senses. The two scenarios above both took place earlier this year, enabled by the OregonLaws.org research system that I created and which typifies these new developments.

Interestingly, this kind of work is very recent; it’s distinct from previous uses of computers for researching the law and assisting with legal work. In the past, techniques drawn from computer science have been most often applied to areas such as document management, court administration, and inter-jurisdiction communication. Working to improve administrative systems’ efficiency, people have approached these problem domains through the development of common document formats and methods of data interchange.

The new trend, in contrast, looks in the opposite direction: divergently tackling new problems as opposed to convergently working towards a few focused goals. This organic type of development is occurring because programming and computer science research is vastly cheaper—and much more fun—than it has ever been in the past. Here are a couple of examples of this new trend:

“Computer Programming and the Law”

Law professor Paul Ohm recently wrote a proposal for a new “interdisciplinary research agenda” which he calls “Computer Programming and the Law.” (The law review article is itself also a functioning computer program, written in the literate programming style.) He envisions “researcher-programmers,” enabled by the steadily declining cost of computer-aided research, using computers in revolutionary ways for empirical legal scholarship. He illustrates four new methods for this kind of research: developing computer programs to “gather, create, visualize, and mine data” that can be found in diverse and far-flung sources.

“Computational Legal Studies”

Grad students Daniel Katz and Michael Bommarito (researcher-programmers, as Paul Ohm would call them) created the Computational Legal Studies Blog in March, 2009. The web site is a growing collection of visualization applied to diverse legal and policy issues. The site is part showcase for the authors’ own work and part catalog of the current work of others.

OregonLaws.org

I started the OregonLaws.org project because I wanted faster and and easier access to the 2007 Oregon Revised Statutes (ORS) and other primary and secondary sources. I had a couple of very statute-heavy courses (Wills & Trusts, and Criminal Law) and I frequently needed to quickly find an ORS section. But as I got further into the development, I realized that it could become a platform for experimenting with computational analysis of legal information, similar to the work being done on the Computational Legal Studies Blog.

I developed the system using pretty much the the steps that Paul Ohm discussed:

Gathering data: I downloaded and cleaned up the ORS source documents, converting them from MS Word/HTML to plain text;
Creating: I parsed the texts, creating a database model reflecting the taxonomy of the ORS: Volumes, Titles, Chapters, etc.;
Creating: I created higher-level database entities based on insights into the documents. For example, by modeling textual references between sections explicitly as reference objects which capture a relationship between a referrer and a referent, and;
Mining and Visualizing: Finally, I’ve begun making web-based views of these newly found objects and relationships.

The object database is the key to intelligent research

By taking the time to go through the steps listed above, powerful new features can be created. Below are some additions to the features described in the introductory scenarios:

We can search smarter. In a previous VoxPopulii post, Julie Jones advocates dropping our usual search methods, and applying techniques like subject-based indexing (a la Factiva’s) to legal content.

This is straightforward to implement with an object model. The Oregon Legislature created the ORS with a conceptual structure similar to most states: The actual content is found in Sections. These are grouped into Chapters, which are in turn grouped into Titles. I was impressed by the organization and the architecture that I was discovering—insights that are obscured by the ways statutes are traditionally presented.

And so I sought out ways to make use of the legislature’s efforts whenever it made sense. In the case of search results, the Title organization and naming were extremely useful. Each Section returned by the search engine “knows” what Chapter and Title it belongs to. A small piece of code can then calculate what Titles are represented in the results, and how frequently. The resulting bar graph doubles as an easy way for users to specify filtering by “subject area”. The screenshot above shows a search for forest.

The ORS’s framework of Volumes, Titles, and Chapters was essentially a tag cloud waiting to be discovered.

We can get better authentication. In another VoxPopulii post, John Joergensen discussed the need for authentication of digital resources. One aspect of this is showing the user the chain of custody from the original source to the current presentation. His ideas about using digital signatures are excellent: a scenario of being able to verify an electronic document’s legitimacy with complete assurance.

We can get a good start towards this goal by explicitly modeling content sources. A source is given attributes for everything we’d want to know to create a citation; date last accessed, URL available at, etc. Every content object in the database is linked to one of these source objects. Now, every time we display a document, we can create properly formatted citations to the original sources.

The gather/create/mine/visualize and object-based approaches open up so many new possibilities, they can’t all be discussed in one short article. It sometimes seems that each new step taken enables previously unforeseen features. A few these others are new documents created by re-sorting and aggregating content, web service APIs, and extra annotations that enhance clarity. I believe that in the end, the biggest accomplishment of projects like this will be to raise our expectations for electronic legal research services, increase their quality, and lower their cost.

Robb Shecter is a software engineer and third year law student at Lewis & Clark Law School in Portland, Oregon. He is Managing Editor for the Animal Law Review, plays jazz bass, and has published articles in Linux Journal, Dr. Dobbs Journal, and Java Report.

VoxPopuLII is edited by Judith Pratt.

Laws in Translation

comparative, legal language, transnational 3 Responses »

May 062009

As a comparative law academic, I have had an interest in legal translation for some time. I’m not alone. In our overseas programs at Nagoya University, we teach students from East and Central Asia who have a keen interest in the workings of other legal systems in the region, including Japan. We would like to supply them with an accessible base of primary resources on which to ground their research projects. At present, we don’t. We can’t, as a practical matter, because the source for such material, the market for legal translation, is broken at its foundation. One of my idle dreams is that one day it might be fixed. The desiderata are plain enough, and simple to describe. To be useful as a base for exploring the law (as opposed to explaining it), I reckon that a reference archive based on translated material should have the following characteristics:

Intelligibility Text should of course be readable (as opposed to unreadable), and terms of art should be consistent across multiple laws, so that texts can safely be read together.
Coverage A critical mass of material must be available. The Civil Code is not of much practical use without the Code of Civil Procedure and supporting instruments.
Currency If it is out of date, its academic value is substantially reduced, and its practical value vanishes almost entirely. If it is not known to be up-to-date, the vanishing happens much more quickly.
Accessibility Bare text is nice, but a reference resource ought to be enriched with cross-references, indexes, links to relevant cases, the original text on which the translation is based.
Sustainability Isolated efforts are of limited utility. There must be a sustained incentive to maintain the archive over time.

In an annoying confluence of market incentives, these criteria do not travel well together. International law firms may have the superb in-house capabilities that they claim, but they are decidedly not in the business of disseminating information. As for publishers, the large cost of achieving significant coverage means that the incentive to maintain and enhance accuracy and readability declines in proportion to the scope of laws translated by a given service. As a result, no commercial product performs well on both of the first two criteria, and there is consequently little market incentive to move beyond them and attend to the remaining items in the list. So much for the invisible hand.

When markets fail, government can provide, of course, but a government itself is inevitably driven by well-focused interests (such as foreign investors) more than by wider communities (divorcing spouses, members of a foreign labor force, or, well, my students). Bureaucratic initiatives tend to take on a life of their own, and without effective market signals, it is hard to measure how well real needs are actually being met. In any case, barring special circumstances such as those obtaining within the EU, the problem of sustainability ever lurks in the background.

Unfortunately, these impediments to supply on terms truly attractive to the consumer are not limited to a single jurisdiction with particularly misguided policies; the same dismal logic applies everywhere (in a recent article, Carol Lawson provides an excellent and somewhat hopeful review of the status quo in Japan). At the root of our discomfiture are, I think, two factors: the cookie-cutter application of copyright protection to this category of material; and a lack of adequate, recognized, and meaningful standards for legal translation (and of tools to apply them efficiently in editorial practice). The former raises an unnecessary barrier to entry. The latter saps value by aggravating agency problems, and raises risk for both suppliers and consumers of legal translations.

I first toyed with this problem a decade ago, in a fading conference paper now unknown to search engines (but still available through the kind offices of the Web Archive). At the time, I was preoccupied with the problem of barriers to entry and the dog-in-the-manger business strategies that are they foster, and this led me to think of the translation conundrum as an intractable, self-sustaining Gordian knot of conflicting interests, capable of resolution only through a sudden change in the rules of the game. Developments in subsequent years, in Japan and elsewhere, have taught me that both the optimism and the pessimism embedded in that view may have been misplaced. The emergence of standards, slow and uncertain though it be, may be our best hope of improvement over time.

To be clear, the objective is not freedom as in free beer. Reducing the cost of individual statutory translations is less important than fostering an environment in which (a) scarce resources are not wasted in the competitive generation of identical content within private or protected containers; and (b) there is a reasonably clear and predictable relationship between quality (in terms of the list above) and cost. Resolving such problems are a common role for standards, both formal and informal. It is not immediately clear how far voluntary standards can penetrate a complex, dispersed and often closed activity like the legal translation service sector — but one need not look far for cases in which an idea about standardization achieved acceptance on its merits and went on to have a significant impact on behavior in a similarly fragmented and dysfunctional market. There is at least room for hope.

In 2006, as part of a Japanese government effort to improve the business environment (for that vocal group of foreign investors referred to above), an interdisciplinary research group in my own university led by Yoshiharu Matsuura and Katsuhiko Toyama released the first edition of a standard bilingual dictionary for legal translation (the SBD) to the Web. Aimed initially at easing the burden of the translation initiative on hard-pressed government officials charged with implementing it, the SBD has since gone through successive revisions, and recently found a new home on a web portal providing government-sponsored statutory translations. (This project is one of two major translation initiatives launched in the same period, the other being a funded drive to render a significant number of court decisions into English).

The benefits of the Standard Bilingual Dictionary are evident in new translations emerging in connection with the project. Other contributors to this space will have more to say about the technology and workflows underlying the SBD, and the roadmap for its future development. My personal concern is that it achieve its proper status, not only as a reference and foundation source for side products, but as a community standard. Paradoxically, restricting the licensing terms for distribution may be the simplest and most effective way of disseminating it as an industry standard. A form of license requiring attribution to the SBD maintainers, and prohibiting modification of the content without permission, would give commercial actors an incentive to return feedback to the project. I certainly hope that the leaders of the project will consider such a scheme, as it would help assure that their important efforts are not dissipated in a flurry of conflicting marketplace “improvements” affixed, one must assume, with more restrictive licensing policies.

There is certainly something to be said for making changes in the way that copyright applies to translated law more generally. The peak demand for law in translation is the point of first enactment or revision. Given the limited pool of translator time available, once a translation is prepared and published, there is a case to be made for a compulsory licensing system, as a means of widening the channel of dissemination, while protecting the economic interest of translators and their sponsors. The current regime, providing (in the case of Japan) for exclusive rights of reproduction for a period extending to fifty years from the death of the author (Japanese Copyright Act, section 51), really makes no sense in this field. As a practical matter, we must depend on legislatures, of course, for core reform of this kind. Alas, given the recent track record on copyright reform among influential legislative bodies in the United States and Europe, I fear that we may be in for a very long wait. In the meantime, we can nonetheless move the game forward by adopting prudent licensing strategies for standards-based products that promise to move this important industry to the next level.

Frank Bennett is an Associate Professor in the Graduate School of Law at Nagoya University.

Vox PopulLII is edited by Judith Pratt

Law, Culture and Beaches

comparative, legal language, liis, vanuatu 1 Response »

Mar 182009

Last year, I had the incredible opportunity of spending five weeks in Port Vila, Vanuatu, working on a research project to evaluate the impact of free access to law in the Pacific Islands. While spending part of my days at the Law Faculty of the University of the Pacific (the other part I spent at the beach), I came to realize that most academics present were working in the Pacific Languages Unit, another teaching program based at the Emalus Campus of the University. Linguists, anthropologists and ethnologists have undertaken the large task of deciphering, writing down and analyzing some of the approximately 110 different languages that are still spoken by the 215,000 Ni-Vanuatu. With an average of 1,700 speakers for each language in 1996, Vanuatu has the world record for language density.

Apart from the beaches, the reason for the recent scientific interest in the numerous languages of this otherwise unknown archipelago is that many of them are at risk of disappearing. Some, such as Ifo, have already become extinct. Others, like Araki, will die in the years to come along with village elders. Young people instead choose to speak Bislama, a English-based Creole that is more widely disseminated. Many inhabitants also speak either English or French, a legacy of the British-French Condominium under which these islands were ruled for several decades.

This depressing reality is the most obvious sign that the once vibrant Ni-Vanuatu cultures are dying—not from a slowly evolving cancer, but from a dazzling flesh-eating disease. We cannot even take the comforting position that this phenomenon is limited to a few distant islands, because it is symptomatic in a large number of countries. This is not even limited to the developing world. Native American Indians are in the same situation. I personally live only a few kilometers from lands granted to the Mohawk Nation and can tell you that aside from a sign near the town hall, you would never guess that Mohawks have their own language.

Although language is the most visible component of cultural identity, the arts are another universally recognized reflection of a culture. (Hollywood movie producers show their “concern” for this by trying to convince us that file sharing is a major threat to culture!) But for French Canadians like me, law can be also be added to that list. When the British Crown granted the Act of Quebec in 1774, it not only allowed French Canadians to keep their language and religion, but also their legal system (at least in private matters). Without this document, the French culture would have certainly declined and maybe disappeared from North America over the next two centuries. It is a paradox that the Act of Quebec sprang from the troubled years preceding the birth of our giant neighbor, which is now the biggest threat to our culture. Still, our ancestors managed to keep their own law accounts for the preservation of such legal concepts as unjust enrichment or the obligation to assist a person in danger. The evolution of these laws through a few centuries of intellectual isolation has uniquely shaped our legal system and continuously reflects the values of the people of Quebec. In the end, although the French Canadian accent is more often associated with our cultural identity, our dual legal system (common law / civil law) undoubtedly contributes to it.

If you admit that legal systems are subcomponents of cultures, there is no question that their diversity should be protected, or at least promoted. Unfortunately, the trend has been going in the opposite direction for a long time. Many legal systems have disappeared with the rise of moderns states. Many more vanished during the colonial era, as it spread common law and civil law all around the globe. But more recently, it is the lack of accessibility in a period characterized by the free flow of information that is causing most of the damages to legal diversity. While the laws and customs of many countries in the developing world are still difficult to find at all, especially in electronic forms, the legal documents that are the most easily accessible on the Internet receive unprecedented attention. For example, all across French-speaking Western Africa, French jurisprudence is more often cited than local law. This can be explained by the simple fact that local decisions are generally impossible to access. In Burkina Faso, the only remaining copies of historical decisions from the Cour de Cassation are piled under a staircase (at least they were in 2004 when I last visited the building). In contrast, every decision rendered since 1989 from the equivalent French court is freely accessible online on Legifrance, and all those published in the court bulletins are also available up to 1960. Another illustration of this problem is the ever-increasing number of citations of the decisions of the European courts at the international level. Without any doubt, the new leadership taken by these institutions, particularly in the field of humanitarian law, is a major factor in this phenomenon. But the fact that many of these decisions are freely distributed online in 23 different languages cannot be ignored either.

These two illustrations quickly help to expose a fact that is becoming harder and harder to deny: the accessibility of legal information influences what the law is and how it evolves. It does so internally by generating competition for authority among the various recognized legal sources. It does so externally by facilitating the incorporation of foreign legal concepts or doctrines that are more effectively disseminated. The examples given above also underline the crucial role played by the Internet and free access to law in this equation. When it comes to finding legal material to cite, jurists prefer to search libraries, rather than underneath staircases. They prefer to browse online instead of walking among alleys of books. They prefer freely accessible websites to highly expensive databases. The goal here is not to openly attack the prevalent legal theories, beliefs in the hierarchy of norms, or the importance of conducting all-inclusive legal research. But these findings imply that jurists do not hesitate to bend the pillars of legal positivism when confronted with necessity.

That brings me back to Vanuatu and the Pacific Islands. In this region, most countries acquired their independence after the end of the Second World War, and inherited the common law as the basis for their own legal system. Local rules of conflict resolution were not totally annihilated by colonization, but were instead relegated to unofficial proceedings or trivial matters. With independence, we could hope that the local, customary rules that remain significant in the modern world would somehow resurface in a system of judge-made law. But this is wishful thinking that ignores the accessibility issue. First, customary law being unwritten by definition, its accessibility was hindered right from the start. Second, for years judges, lawyers and other legal practitioners from the Pacific almost exclusively had access to case reports printed in the United Kingdom. A few local initiatives at case reporting did occur over the last few decades, but the coverage was irregular and far too small to sustain a modern state’s appetite for precedents. Third, it should be added that many foreign judges who have never been confronted with the local customs and traditions remained in position up to very recently. For these reasons, jurists from the Pacific continued to apply the latest British judgments as if it was the law in force in their own countries.

Fortunately, the Internet has brought changes in this regard. In 1997, the law library of the University of the South Pacific started to publish online cases collected from many of the jurisdictions of the region. The database grew steadily and around 2001 the Pacific Legal Information Institute (PacLII) was created in order to expand the experiment. Today, PacLII publishes more than 30,000 cases from 15 different Pacific island countries, in addition to legislative and treaty material. For most of these countries, PacLII is the sole point of access to national legal information.

In the course of my stay there I compiled the usage statistics of the PacLII website. My initial goal was to determine if local cases are downloaded by locals or instead by international users looking for foreign legal information. It turned out that five Pacific island countries are intensive users of the decisions disseminated on PacLII: Fiji (71); Vanuatu (62); Samoa (47); Kiribati (33); and Salomon Islands (21). (The number between parenthesis is the number of actual decision files downloaded for 1,000 inhabitants in 2007.) Not surprisingly, those five countries are the ones for which PacLII has the more comprehensive databases. The only exception is Papua New Guinea, where an alternative national publisher also provide online access to cases.

More relevant for legal diversity are the numbers that came out of my analysis of citations included inside the local judgments rendered over the period 1997-2007. In parallel with the development of PacLII, citations of national decisions increased by 42% in the five countries already mentioned. Citations of regional decisions (citations from other Pacific Islands countries) increased by 462%, although they still occur only occasionally. In comparison, those percentages stagnate in the other nine countries not using PacLII with equivalent enthusiasm. (Papua New Guinea is excluded here because the national access provider is having its own influence.)

Those numbers indicate that the online dissemination of Pacific Islands cases had a noticeable impact on the legal system of five countries. While it is still too early to write about the creation of a Pacific jurisprudence, there is no doubt that local decisions are slowly but surely replacing foreign cases as the primary source of precedents in those countries. It appears that free access to law has finally reversed the long established trend of ever increasing foreign legal influence in the region.

Even if this new phenomenon is particularly acute in Vanuatu itself, the dying legal cultures of this archipelago will certainly not be saved by this achievement alone. Many specificities of the customary dispute resolution mechanisms originating in the area must have already disappeared definitively, some for the better, some for the worse. Nevertheless, Ni-Vanuatu now possess a means to promote their own vision of what the law is and how it should be implemented. If uses of this new tool do not succeed in salvaging pieces from their traditional legal cultures, at least it should help them building a new one.

Pierre-Paul Lemyre is in charge of the research and development activities of LexUM, the research group that runs the Canadian Legal Information Institute ( CanLII). Previously, he was in charge of the business development of LexUM, particularly on the international stage where he built relationships with numerous funding agencies and local partners.

VoxPopuLII is edited by Judith Pratt.

Suffusion theme by Sayontan Sinha

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