The other day a friend came to me because he heard about the openlaws.eu project. He said: “Hey, openlaws sounds great – does that mean that I can write my own laws now?”. I had to tell him no, but that it was almost as good as that…
In March, Mike Lissner wrote for this blog about the troubling state of access to case law – noting with dismay that most of the US corpus is not publicly available. While a few states make official cases available, most still do not, and neither does the federal government. At Ravel Law we’re building a new legal research platform and, like Mike, we’ve spent substantial time troubleshooting access to law issues. Here, we will provide some more detail about how official case law is created and share our recommendations for making it more available and usable. We focus in particular on FDsys – the federal judiciary’s effort in this space – but the ideas apply broadly.
If you ask a typical federal court clerk, such as our friend Rose, about the provenance of case opinions you will only learn half the story. Rose can tell you that after she and her judge finish an opinion it gets sent to a permanent court staffer. After that the story that Rose knows basically ends. The opinion at this stage is in its “slip” opinion state, and only some time later will Rose see the “official” version – which will have a citation number, copy edits, and perhaps other alterations. Yet, it is only this new “official” version that may be cited in court. For Mike Lissner, for Ravel, and for many others, the crux of the access challenge lies in steps beyond Rose’s domain, beyond the individual court’s in fact – when a slip becomes an official opinion.
For years the federal government has outsourced the creation of official opinions, relying on Westlaw and Lexis to create and publish them. These publishers are handed slip opinions by court staff, provide some editing, assign citations and release official versions through their systems. As a result, access to case law has been de facto privatized, and restricted.
Of late, however, courts are making some strides to change the nature of this system. The federal judiciary’s primary effort in this regard is FDsys (and also see the 9th Circuit’s recent moves). But FDsys’s present course gives reason to worry that its goals have been too narrowly conceived to achieve serious benefit. This discourages the program’s natural supporters and endangers its chances of success.
We certainly count ourselves amongst FDsys’s strongest supporters, and we applaud the Judicial Conference for its quick work so far. And, as friends of the program, we want to offer feedback about how it might address the substantial skepticism it faces from those in the legal community who want the program to succeed but fear for its ultimate success and usability.
Our understanding is that FDsys’s primary goal is to provide free public access to court opinions. Its strategy for doing so (as inexpensively and as seamlessly as possible) seems to be to fully implement the platform at all federal courts before adding more functionality. This last point is especially critical. Because FDsys only offers slip opinions, which can’t be cited in court, its current usefulness for legal professionals is quite limited; even if every court used FDsys it would only be of marginal value. As a result, the legal community lacks incentive to lend its full, powerful, support to the effort. This support would be valuable in getting courts to adopt the system and in providing technology that could further reduce costs and help to overcome implementation hurdles.
Setting Achievable Goals
We believe that there are several key goals FDsys can accomplish, and that by doing so it will win meaningful support from the legal community and increase its end value and usage. With loftier goals (some modest, others ambitious), FDsys would truly become a world-class opinion publishing system. The following are the goals we suggest, along with metrics that could be used to assess them.
|1. Comprehensive Access to Opinions||– Does every federal court release every published and unpublished opinion?|
|– Are the electronic records comprehensive in their historic reach?|
|2. Opinions that can be Cited in Court||– Are the official versions of cases provided, not just the slip opinions?|
|– And/or, can the version released by FDsys be cited in court?|
|3. Vendor-Neutral Citations||– Are the opinions provided with a vendor-neutral citation (using, e.g., paragraph numbers)?|
|4. Opinions in File Formats that Enable Innovation||– Are opinions provided in both human and machine-readable formats?|
|5. Opinions Marked with Meta-Data||– Is a machine-readable language such as XML used to tag information like case date, title, citation, etc?|
|– Is additional markup of information such as sectional breaks, concurrences, etc. provided?|
|6. Bulk Access to Opinions||– Are cases accessible via bulk access methods such as FTP or an API?|
The first three goals are the basic building blocks necessary to achieve meaningful open-access to the law. As Professor Martin of Cornell Law and others have chronicled, the open-access community has converged around these goals in recent years, and several states (such as Oklahoma) have successfully implemented them with very positive results.
Goals 3-6 involve the electronic format and storage medium used, and are steps that would be low-cost enablers of massive innovation. If one intention of the FDsys project is to support the development of new legal technologies, the data should be made accessible in ways that allow efficient computer processing. Word documents and PDFs do not accomplish this. PDFs, for example, are a fine format for archival storage and human reading, but computers don’t easily read them and converting PDFs into more usable forms is expensive and imperfect.
In contrast, publishing cases at the outset in a machine-readable format is easy and comes at virtually no additional cost. It can be done in addition to publishing in PDF. Courts and the GPO already have electronic versions of cases and with a few mouse clicks could store them in a format that would inspire innovation rather than hamper it. The legal technology community stands ready to assist with advice and development work on all of these issues.
We believe that FDsys is a commendable step toward comprehensive public access to law, and toward enabling innovation in the legal space. Left to its current trajectory, however, it is certain to fall short of its potential. With some changes now, the program could be a home run for the entire legal community, ensuring that clerks like Rose can rest assured that the law as interpreted by her judge is accessible to everyone.
Daniel Lewis and Nik Reed are graduates of Stanford Law School and the co-founders of Ravel Law, a legal search, analytics, and collaboration platform. In 2012, Ravel spun out of a Stanford University Law School, Computer Science Department, and Design School collaborative research effort focused on legal citation networks and information design. The Ravel team includes software engineers and data scientists from Stanford, MIT, and Georgia Tech. You can follow them on Twitter @ravellaw
At my organization, the Sunlight Foundation, we follow the rules. I don’t just mean that we obey the law — we literally track the law from inception to enactment to enforcement. After all, we are a non-partisan advocacy group dedicated to increasing government transparency, so we have to do this if we mean to serve one of our main functions: creating and guarding good laws, and stopping or amending bad ones.
One of the laws we work to protect is the Freedom of Information Act. Last year, after a Supreme Court ruling provided Congress with motivation to broaden the FOIA’s exemption clauses, we wanted to catch any attempts to do this as soon as they were made. As many reading this blog will know, one powerful way to watch for changes to existing law is to look for mentions of where that law has been codified in the United States Code. In the case of the FOIA, it’s placed at 5 U.S.C. § 552. So, what we wanted was a system that would automatically sift through the full text of all legislation, as soon as it was introduced or revised, and email us if such a citation appeared.
With modern web technology, and the fact that the Government Printing Office publishes nearly every bill in Congress in XML, this was actually a fairly straightforward thing to build internally. In fact, it was so straightforward that the next question felt obvious: why not do this for more kinds of information, and make it available freely to the public?
That’s why we built Scout, our search and notification system for government action. Scout searches the bills and speeches of Congress, and every federal regulation as they’re drafted and proposed. Through the awe-tacular power of our Open States project, Scout also tracks legislation as it emerges in statehouses all over the country. It offers simple and advanced search operators, and any search can be turned into an email alert or an RSS feed. If your search turns up a bill worth following, you can subscribe to bill-specific alerts, like when a vote on it is coming up.
This has practical applications for, really, just about everyone. If you care about an issue, be it as an environmental activist, a hunting enthusiast, a high (or low) powered lawyer, or a government affairs director for a company – finding needles in the giant haystack of government is a vital function. Since launching, Scout’s been used by thousands of people from a wide variety of backgrounds, by professionals and ordinary citizens alike.
Search and notifications are simple stuff, but simple can be powerful. Soon after Scout was operational, our original FOIA exemption alerts, keyed to mentions of 5 U.S.C. § 552, tipped us off to a proposal that any information a government passed to the Food and Drug Administration be given blanket immunity to FOIA if the passing government requested it.
If that sounds crazily broad, that’s because it is, and when we in turn passed this information onto the public interest groups who’d helped negotiate the legislation, they too were shocked. As is so often the case, the bill had been negotiated for 18 months behind closed doors, the provision was inserted immediately and anonymously before formal introduction, and was scheduled for a vote as soon as Senate processes would allow.
Because of Scout’s advance warning, there was just barely enough time to get the provision amended to something far narrower, through a unanimous floor vote hours before final passage. Without it, it’s entirely possible the provision would not have been noticed, much less changed.
This is the power of information; it’s why many newspapers, lobbying shops, law firms, and even government offices themselves pay good money for services like this. We believe everyone should have access to basic political intelligence, and are proud to offer something for free that levels the playing field even a little.
Of particular interest to the readers of this blog is that, since we understand the value of searching for legal citations, we’ve gone the extra mile to make US Code citation searches extra smart. If you search on Scout for a phrase that looks like a citation, such as “section 552 of title 5”, we’ll find and highlight that citation in any form, even if it’s worded differently or referencing a subsection (such as “5 U.S.C. 552(b)(3)”). If you’re curious about how we do this, check out our open source citation extraction engine – and feel free to help make it better!
It’s worth emphasizing that all of this is possible because of publicly available government information. In 2012, our legislative branch (particularly GPO and the House Clerk) and executive branch (particularly the Federal Register) provide a wealth of foundational information, and in open, machine-readable formats. Our code for processing it and making it available in Scout is all public and open source.
Anyone reading this blog is probably familiar with how easily legal information, even when ostensibly in the public domain, can be held back from public access. The judicial branch is particularly badly afflicted by this, where access to legal documents and data is dominated by an oligopoly of pay services both official (PACER) and private-sector (Westlaw, LexisNexis).
It’s easy to argue that legal information is arcane and boring to the everyday person, and that the only people who actually understand the law work at a place with the money to buy access to it. It’s also easy to see that as it stands now, this is a self-fulfilling prophecy. If this information is worth this much money, services that gate it amplify the political privilege and advantage that money brings.
The Sunlight Foundation stands for the idea that when government information is made public, no matter how arcane, it opens the door for that information to be made accessible and compelling to a broader swathe of our democracy than any one of us imagines. We hope that through Scout, and other projects like Open States and Capitol Words, we’re demonstrating a few important reasons to believe that.
Eric Mill is a software developer and international program officer for the Sunlight Foundation. He works on a number of Sunlight’s applications and data services, including Scout and the Congress app for Android.
[Editor’s Note: For topic-related VoxPopuLII posts please see, among others: Nick Holmes, Accessible Law; Matt Baca & Olin Parker, Collaborative, Open Democracy with LexPop; and John Sheridan, Legislation.gov.uk
When I started to write a post about THOMAS and its place in open government about three months ago, I was feeling apologetic. I was going make a heavy-handed, literal comparison of the opening hours of the Law Library of Congress (one of the maintainers of THOMAS, and my former employer, whose views are not at all represented here) with open government. I planned to wax sympathetic on the history of THOMAS, and how little has changed since it was first built. But, that post would not have added anything new to the #opengovdata conversation, or really mentioned data at all.
Just over one month ago, #freeTHOMAS reached a fever pitch surrounding the passage of H.R. 5882, the Legislative Branch Appropriations Act for FY2013. Just before passage, H.Rpt.511 directed official conversation on open legislative data for the coming fiscal year by saying, “let’s talk.” In a section about the Government Printing Office, the House Appropriations Committee expressed concerns about authentication and open legislative data, but called for a task force “composed of staff representatives of the Library of Congress, the Congressional Research Service, the Clerk of the House, the Government Printing Office, and such other congressional offices as may be necessary,” to look in to the matter.
Opengovdata was disappointed in government. The tone of the House Report suggested that government had been dismissive of opengovdata–and in all fairness, others were beginning to be dismissive of opengovdata as well.
#OpenGov is a really big tent.
People who want a more open environment for government to communicate with the governed want data, increased transparency, plain language legislation, open court filings, access to government funded research, silly walks, etc. Accountability through transparency often dominates the conversation, thanks to well-funded non-profits and high profile projects. However, there’s more to the movement. In that spirit…
Let’s be transparent about transparency.
When the goal of an open government project is legislative transparency through freely accessible data, let’s focus on that. When the goal is something else, let’s focus on that too. We hear about government accountability through data because the voices calling for it are loud. But data can do much more than bring about a more transparent lawmaking process.
In the words of a wise man, make transparency your Number Two.
If you haven’t had the chance to watch this aforementioned Freedom To Connect talk, and you’ve got half an hour to spare, I highly recommend it. The subject is community broadband, but it’s hard not to be inspired to frame other issues smarter, with transparency ever-present in the background.
Let’s focus on Number One.
If the THOMAS data, for example, were open right now, this instant, you couldn’t watch it on TV. You couldn’t read it on your Kindle. It’s mere presence would not increase transparency. Someone would have to do something with it. Number One is the thing you do with the data to reach your own goal–and that goal might not be legislative transparency.
As a public law librarian to a broad constituency, my goals are different than those of a non-profit think tank, or a law firm, or a law school, or even a non-law public library. In a climate of doing more with less, of needing to show much return for little investment, we each have to frame specific, measurable, achievable Number Ones tailored to the needs of our institutions. Without these Number Ones (goals, mission statements, benchmarks, or whatever management word your organization uses), we flounder off-mission, lose focus, and potentially lose funding.
Librarians are foot soldiers for the First Amendment–we like open information, we place a high value on the freedom to know. However, we’re among the first to be cut in tight budget situations, and we’re all too familiar with the perils of asking for something that’s overly broad, or asking for something that you can’t show narrowly tailored value for later on.
With respect to open gov data: government accountability is not unimportant to me as a voter. However, as a law librarian, I need to focus on Number Ones with more specific, smaller-scale goals than transparency, that will create measurable outcomes, allowing me to show concrete value to my institution. The big picture of how information is available, and the relationship between the government and the governed is important, but it doesn’t always get you funding, and it can’t always answer the question of the patron in front of you.
What’s your Number One?
There’s plenty of data out there. What are you doing with it? How can you manipulate raw free resources into something good for your institution? There is much to be said for information for the sake of information. I can’t imagine needing to convince most library-types of that. That said, we library-types, we information professionals, we decision makers, and perhaps we citizens need to narrow open gov to make it work for us. Data is good, but a real-time interactive civics education program based on THOMAS data for K-12 students is better. Let transparency folks fight the good fight, and don’t forget their work. But while you’ve got your librarian hat on, focus on a Number One that works for you.
Meg Lulofs is an information professional at large, blogging at librarylulu.com, editing Pimsleur’s Checklists of Basic American Legal Publications, and making mischief. She earned a J.D. from the University of Baltimore, and a M.L.I.S. from Catholic University. She welcomes feedback at firstname.lastname@example.org. You can follow her on Twitter @librarylulu, or on Facebook at facebook.com/librarylulu.
VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.
[Editor’s Note] For topic-related VoxPopuLII posts please see: Nick Holmes, Accessible Law; John Sheridan, Legislation.gov.uk; David Moore, OpenGovernment.org: Researching U.S. State Legislation.
In the fall of 2009, the American Association of Law Libraries (AALL) put out a call for volunteers to participate in our new state working groups to support one of AALL’s top policy priorities: promoting the need for authentication and preservation of digital legal resources. It is AALL policy that the public have no-fee, permanent public access to authentic online legal information. In addition, AALL believes that government information, including the text of all primary legal materials, must be in the public domain and available without restriction.
The response to our call was overwhelming, with volunteers from all 50 states and the District of Columbia expressing interest in participating. To promote our public policy priorities, the initial goals of AALL’s working groups were to:
- Take action to oppose any plan in their state to eliminate an official print legal resource in favor of online-only, unless the electronic version is digitally authenticated and will be preserved for permanent public access;
- Oppose plans to charge fees to access legal information electronically; and
- Ensure that any legal resources in a state’s raw-data portal include a disclaimer so that users know that the information is not an official or authentic resource (similar to what is included on the Code of Federal Regulations XML on Data.gov).
In late 2009, AALL’s then-Director of Government Relations Mary Alice Baish met twice with Law Librarian of Congress Roberta Shaffer and Carl Malamud of Public.Resource.org to discuss Law.gov and Malamud’s idea for a national inventory of legal materials. The inventory would include legal materials from all three branches of government. Mary Alice volunteered our working groups to lead the ambitious effort to contribute to the groundbreaking national inventory. AALL would use this data to update AALL’s 2003 “State-by-State Report on Permanent Public Access to Electronic Government Information” and the 2007 “State-by-State Report on Authentication of Online Legal Resources” and 2009-2010 updates, which revealed that a significant number of state online legal resources are considered to be “official” but that few are authenticating. It would also help the Law Library of Congress, which owns the Law.gov domain name, with their own ambitious projects.
Erika Wayne and Paul Lomio at Stanford University’s Robert Crown Law Library developed a prototype for the national inventory that included nearly 30 questions related to scope, copyright, cost to access, and other use restrictions. They worked with the California State Working Group and the Northern California Association of Law Libraries to populate the inventory with impressive speed, adding most titles in about two months.
AALL’s Government Relations Office staff then expanded the California prototype to include questions related to digital authentication, preservation, and permanent public access. Our volunteers used the following definition of “authentication” provided by the Government Printing Office:
An authentic text is one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator.
Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.
An authentic text is able to be authenticated, which means that the particular text in question can be validated, ensuring that it is what it claims to be.
The “Principles and Core Values Concerning Public Information on Government Websites,” drafted by AALL’s Access to Electronic Legal Information Committee (now the Digital Access to Legal Information Committee) and adopted by the Executive Board in 2007, define AALL’s commitment to equitable, no-fee, permanent public access to authentic online legal information. The principle related to preservation states that:
Information on government Web sites must be preserved by the entity, such as a state library, an archives division, or other agency, within the issuing government that is charged with preservation of government information.
- Government entities must ensure continued access to all their legal information.
- Archives of government information must be comprehensive, including all supplements.
- Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.
- Governments must plan effective methods and procedures to migrate information to newer technologies.
In addition, AALL’s 2003 “State-By-State Report on Permanent Public Access to Electronic Government Information” defines permanent public access as, “the process by which applicable government information is preserved for current, continuous and future public access.”
Our volunteers used Google Docs to add to the inventory print and electronic legal titles at the state, county, and municipal levels and answer a series of questions about each title. AALL’s Government Relations Office set up a Google Group for volunteers to discuss issues and questions. Several of our state coordinators developed materials to help other working groups, such as Six Easy Steps to Populating Your State’s Inventory by Maine State Working Group coordinator Christine Hepler, How to Put on a Successful Work Day for Your Working Group by Florida State Working Group co-coordinators Jenny Wondracek and Jamie Keller, and Tips for AALL State Working Groups with contributions from many coordinators.
In October 2010, AALL held a very successful webinar on how to populate the inventories. More than 200 AALL and chapter members participated in the webinar, which included Kentucky State Working Group coordinator Emily Janoski-Haehlen, Maryland State Working Group coordinator Joan Bellistri, and Indiana State Working Group coordinator Sarah Glassmeyer as speakers. By early 2011, more than 350 volunteers were contributing to the state inventories.
Our dedicated volunteers added more than 7,000 titles to the inventory in time for AALL’s June 30, 2011 deadline. AALL recognized our hard-working volunteers at our annual Advocacy Training during AALL’s Annual Meeting in Philadelphia, and celebrated their significant accomplishments. Timothy L. Coggins, 2010-11 Chair of the Digital Access to Legal Information Committee, presented these preliminary findings:
- Authentication: No state reported new resources that have been authenticated since the 2009-2010 Digital Access to Legal Information Committee survey
- Official status: Several states have designated at least one legal resource as official, including Arizona, Florida, and Maine
- Copyright assertions in digital version: Twenty-five states assert copyright on at least one legal resource, including Oklahoma, Pennsylvania, and Rhode Island
- Costs to access official version: Ten states charge fees to access the official version, including Kansas, Vermont, and Wyoming
- Preservation and Permanent Public Access: Eighteen states require preservation and permanent public access of at least one legal resource, including Tennessee, Virginia, and Washington
Analyzing and Using the Data
In July 2011, AALL’s Digital Access to Legal Information Committee formed a subcommittee that is charged with reviewing the national inventory data collected by the state working groups. The subcommittee includes Elaine Apostola (Maine State Law and Legislative Reference Library), A. Hays Butler (Rutgers University Law School Library), Sarah Gotschall (University of Arizona Rogers College of Law Library), and Anita Postyn (Richmond Supreme Court Library). Subcommittee members have been reviewing the raw data as entered by the working group volunteers in their state inventories. They will soon focus their attention on developing a report that will also act as an updated version of AALL’s State-by-State Report on Authentication of Online Legal Resources.
The report, to be issued later this year, will once again support what law librarians have known for years: there are widespread issues with access to legal resources and there is an imminent need to prevent a trend of eliminating print resources in favor of electronic resources without the proper safeguards in place. It will also include information on: the official status of legal resources; whether states are providing for authentication, permanent public access, and/or preservation of online legal resources; any use restrictions or copyright claims by the state; and whether a universal (public domain) citation format has been adopted by any courts in the state.
In addition to providing valuable information to the Law Library of Congress and related Law.gov projects, this information has already been helpful to various groups as they proceed to advocate for no-fee, permanent public access to government information. The data has already been useful to advocates of the Uniform Electronic Legal Material Act and will continue to be valuable to those seeking introduction and enactment in their states. The inventory has been used as a starting point for organizations that are beginning digitization projects of their state legal materials. The universal citation data will be used to track the progress of courts recognizing the value of citing official online legal materials through adopting a public domain citation system. Many state working group coordinators have also shared data with their judiciaries and legislatures to help expose the need for taking steps to protect our state legal materials.
The Next Steps: Federal Inventory
- Legal research materials
- Information authored or created by agencies
- Resources that are publicly accessible
Our goals are the same as with the state inventories: to identify and answer questions about print and electronic legal materials from all three branches of government. Volunteers from Federal agencies and the courts are already adding information such as decisions, reports and digests (Executive); court opinions, court rules, and Supreme Court briefs (Judicial); and bills and resolutions, the Constitution, and Statutes at Large (Legislative). Emily Carr, Senior Legal Research Specialist at the Law Library of Congress, and Judy Gaskell, retired Librarian of the Supreme Court, are coordinating this project.
Thanks to the contributions of an army of AALL and chapter volunteers, the national inventory of legal materials is nearly complete. Keep an eye on AALL’s website for more information as our volunteers complete the Federal Inventory, analyze the data, and promote the findings to Federal, state and local officials.
[Editor’s Note: For topic-related VoxPopuLII posts please see: Barbara Bintliff, The Uniform Electronic Legal Material Act Is Ready for Legislative Action; Jason Eiseman, Time to Turn the Page on Print Legal Information; John Joergensen, Authentication of Digital Repositories.]
VoxPopuLII is edited by Judith Pratt. Editors-in-Chief are Stephanie Davidson and Christine Kirchberger, to whom queries should be directed. The information above should not be considered legal advice. If you require legal representation, please consult a lawyer.
The Civic Need
Civic morale in the U.S. is punishingly low and bleeding out. When it comes to recent public approval of the U.S. Congress, we’re talking imminent negative territory, if such were possible. Gallows chuckles were shared over an October 2011 NYT/CBS poll that found approval of the U.S. Congress down to 9% — lower than, yes, communism, the British Petroleum company during the oil spill, and King George III at the time of the American Revolution. The trends are beyond grim: Gallup in November tracked Congress falling to 13% approval, tying an all-time low. For posterity, this is indeed the first branch of the federal government in America’s constitutional republic, the one with “the power of the purse“, our mostly-millionaire law-makers. Also: the branch whose leadership recently attempted to hole up in an anti-democratic, unaccountable “SuperCommittee” to make historic decisions affecting public policy in secret. Members of Congress are the most fallible, despised elected officials in our representative democracy.
OpenCongress: Responding with open technology
Such was the visceral distrust of government (and apathy about the wider political process, in all its messy necessity) that our non-profit organization, the Participatory Politics Foundation (PPF), sought to combat with our flagship Web application, OpenCongress.org. Launched in 2007, its original motto was: “Bringing you the real story about what’s happening in Congress.” Our premise, then as today, is that radical transparency in government will increase public accountability, reduce systemic corruption in government, and result in better legislative outcomes. We believe free and open-source technology can push forward and serve a growing role in a much more deliberative democratic process — with an eye towards comprehensive electoral reform and increased voter participation. The technology buffet includes, in part, the following: software (in the code that powers OpenCongress); Web applications (like the user-friendly OpenCongress pages and engagement tools); mobile (booming, of course, globally); libre data and open standards; copyleft licensing; and more. One articulation of our goal is to encourage government, as the primary source, to comply exhaustively with the community-generated Principles of Open Government Data (which, it should be noted, are continually being revised and amended by #opengov advocates, as one would expect in a healthy, dynamic, and responsive community of watchdogs with itchy social sharing fingers). Another articulation of our goal, put reductively: we’ll know we’re doing better when voter participation rates rise in the U.S. from our current ballpark of 48% to levels comparable to those of other advanced democracies. Indeed, there has been a very strong and positive public demand for user-friendly Web interfaces and open data access to official government information. Since its launch, OpenCongress has grown to become the most-visited not-for-profit government transparency site in the U.S. (and possibly the world), with over one million visits per month, hundreds of thousands of users, and millions of automated data requests filled every week.
OpenGovernment.org: Opening up state legislatures
The U.S. Congress, unfortunately, remains insistently closed-off from the taxpaying public — living, breathing people and interested constituent communities — in its data inputs and outputs, while public approval keeps falling (for a variety of reasons, more than can be gestured towards here). This discouraging sentiment might be familiar to you — even cliché — if you’re an avid consumer of political news media, political blogs, and social media. But what’s happening in your state legislature? What bills in your state House or Senate chambers are affecting issues you care about? What are special interests saying about them, and how are campaign contributions influencing them? Even political junkies might not have conversational knowledge of key votes in state legislatures, which — if I may be reductive — take all the legislative arcane-ness of the federal Congress and boil it down to an even more restrictive group of state capitol “insiders” who really know the landscape. A June 2011 study by the University of Buffalo PoliSci Department found that, as summarized on Ballotpedia :
First, the American mass public seems to know little about their state governments. In a survey of Ohio, Patterson, Ripley, and Quinlan (1992) found that 72 percent of respondents could not name their state legislator. More recently, an NCSL-sponsored survey found that only 33 percent of respondents over 26 years old could correctly identify even the party that controlled their state legislature.
Further, state legislative elections are rarely competitive, and frequently feature only one major party candidate on the ballot. In the 2010 elections, 32.7 percent of districts had only one major party candidate running. (Ballotpedia 2010) In 18 of the 46 states holding legislative elections in 2010, over 40 percent of seats faced no major-party challenge, and in only ten states was the proportion of uncontested seats lower than 20 percent. In such an environment, the ability to shirk with limited consequences seems clear.”
To open up state government, PPF created OpenGovernment.org as a joint project with the non-profit Sunlight Foundation and the community-driven Open States Project (of Sunlight Labs). Based on the proven OpenCongress model of transparency, OpenGovernment combines official government information with news and blog coverage, social media mentions, campaign contribution data, public discussion forums, and a suite of free engagement tools. The result, in short, is the most user-friendly page anywhere on the Web for accessing bill information at the state level. The site, launched in a public beta on January 18th, 2011, currently contains information for six U.S. state legislatures: California, Louisiana, Maryland, Minnesota, Texas, and Wisconsin. In March 2011, OpenGovernment was named a semi-finalist in the Accelerator Contest at South by Southwest Interactive conference.
Skimming a state homepage — for example, California — gives a good overview of the site’s offerings: every bill, legislator, vote, and committee, with as much full bill text as is technically available; plus issues, campaign contributions, key vote analysis, special interest group positions, and a raft of social wisdom. A bill page — for example, Wisconsin’s major freedom of association bill, SB 11 — shows how it all comes together in a highly user-friendly interface and, we hope, the best-online user experience. Users can track, share, and comment on legislation, and then contact their elected officials over email directly from OpenGovernment pages. OpenGovernment remains in active open-source development. Our developer hub has more information. See also our wish-list and how anyone can help us grow, as we seek to roll out to all 50 U.S. state legislatures before the November 2012 elections.
Opening up state legislative data: The benefits
To make the value proposition for researchers explicit, I believe fundamentally there is clear benefit in having a go-to Web resource to access official, cited information about any and all legislative objects in a given state legislature (as there is with OpenCongress and the U.S. Congress). It’s desirable for researchers to know they have a permalink of easy-to-skim info for bills, votes, and more on OpenGovernment — as opposed to clunky, outmoded official state legislative websites (screenshots of which can be found in our launch blog post, if you’re brave enough to bear them). Full bill text is, of course vital for citing, as is someday having fully-transparent version-control by legislative assistants and lobbyists and members themselves. For now, the site’s simple abilities to search legislation, sort by “most-viewed,” sort by date, sort by “most-in-the-news,” etc., all offer a highly contemporary user-experience, like those found by citizens elsewhere on the Web (e.g., as online consumers or on social media services). Our open API and code and data repositories ensure that researchers and outside developers (e.g., data specialists) have bulk access to the data we aggregate, in order to remix and sift through for discoveries and insights. Bloggers and journalists can use OpenGovernment (OG) in their political coverage, just as OpenCongress (OC) continues to be frequently cited by major media sites and blog communities. Issue advocates and citizen watchdogs can use OG to find, track, and contact their state legislators, soon with free online organizing features like Contact-Congress on OC. OpenGovernment‘s launch was covered by Alex Howard of O’Reilly Radar, the National Council of State Legislatures (The Thicket blog), and Governing, with notes as well from many of PPF and Sunlight’s #opengov #nonprofit allies, and later on by Knight Foundation, Unmatched Style, and dozens of smaller state-based political blogs.
The technology that powers OpenGovernment.org
The technology behind OpenGovernment was assembled by PPF’s former Director of Technology (and still good friend-of-PPF, following his amicable transition to personal projects) Carl Tashian. In designing it, Carl and I were driven first by a desire to ensure the code was not only relatively-remixable but also as modular as possible. Remixable, because we hoped and expect that other open-source versions of OpenGovernment will spring up, creating (apologies for the cliché, but it’s one I am loathe to relinquish, as it’s really the richest, most apt description of a desirable state of affairs) a diverse ecosystem of government watchdog sites for state legislatures. Open data and user-focused Web design can bring meaningful public accountability not only to state legislatures, but also to the executive and judicial branches of state government as well. PPF seeks non-profit funding support to bring OpenGovernment down to the municipal level — county, city, and local town councils, as hyper-local and close to the neighborhood block as possible — and up to foreign countries and international institutions like the United Nations. In theory, any government entity with official documents and elected official roles is a candidate for a custom version of OpenGovernment facing the public on the open Web — even those without fully-open data sets, which of course, most countries don’t have. But by making OpenGovernment as modular as possible, we aimed to ensure that the site could work with a variety of data inputs and formats. The software is designed to handle a best-case data stream — an API of legislative info — or less-than-best, such as XML feeds, HTML scraping, or even a static set of uploaded documents and spreadsheets.
Speaking of software, OpenGovernment is powered by GovKit, an open-source Ruby gem for aggregating and displaying open government APIs from around the Web. Diagrammed here, they are summarized here with a few notes:
- Open States – a RESTful API of official government data, e.g. bills, votes, legislators, committees, and more. This data stream forms the backbone of OpenGovernment. A significantly volunteer effort coordinated by the talented and dedicated team at Sunlight Labs, Open States fulfills a gigantic public need for standardized data about state legislation — largely by the time-intensive process of scraping HTML from unstandardized existing official government websites. Really remarkable and precedent-setting public-interest work, the updates are by James Turk on the Labs Blog. Data received daily in .json format, and wherever possible, bill text is displayed in the smooth open-source DocumentCloud text viewer (e.g., WI SB11).
- OpenCongress – API for federal bills, votes, people, and news and blog coverage. OpenGovernment is primarily focused on finding and tracking state bills and legislators, but one of our premises in designing the public resource was that the vast majority of users would first need to look up their elected officials by street address. (Can you name your state legislators with confidence offhand? I couldn’t before developing OpenCongress in 2007.) So since users were likely to take that action, we used our sibling site OpenCongress to find and display federal legislators underneath state ones (e.g., CA zip 94110).
- Google News, Google Blog Search, Bing API – we use these methods to aggregate news and blog coverage of bills and members, as on OpenCongress: searching for specific search terms and thereby assembling pages that allow a user to skim down recent mentions of a bill (along with headlines and sources) without straying far from OpenGovernment. One key insight of OpenCongress was that lists of bills “most in the news” and “most-on-blogs” can point users towards what’s likely most-pressing or most-discussed or most-interesting to them, as search engine or even intra-site keyword searches on, say, “climate change bill” don’t always return most-relevant results, even when lightly editorially curated for SEO. On pages of news results for individual bills (e.g., CA SB 9) or members (e.g., WI Sen. Tim Carpenter), it’s certainly useful to get a sense of the latest news by skimming down aggregated headlines, even given known issues with bringing in similarly titled bills (e.g., SB 9 in Texas, not California) or sports statistics or spam. Future enhancements to OpenGovernment will do more to highlight trusted news sources from open data standards — a variety of services like NewsTrust exist on this front, and there’s no shortage of commercial partnerships possible (or via Facebook Connect and other closed social media), but PPF’s focus is on mitigating the “filter bubble” and staying in play on the open Web.
- Transparency Data API (by Sunlight Labs) to bring in campaign contribution data from FollowTheMoney. If Open States data is the backbone of OpenGovernment, this money-in-politics data is its heart. PPF’s work is first and foremost motivated by a desire to work in the public interest to mitigate the harmful effects of systemic corruption at every level of government, from the U.S. Congress on down. (See, e.g., Lessig, Rootstrikers, innumerable academic studies and news investigations into the biased outcomes of a system where, for example, federal members of Congress spend between 30 and 70 percent of their time fundraising instead of connecting with constituents.) Part of this is vocally endorsing comprehensive electoral reforms such as non-partisan redistricting, right-to-vote legal frameworks, score voting, parliamentary representation, and the Fair Elections Now Act for full public financing of elections. But the necessary first step is radical transparency of campaign contributions by special interests to elected officials, accompanied by real-time financial disclosure, stronger ethics laws, aggressive oversight, and regulation to stop the revolving door with lobbyists and corporations that results in oligarchical elites and a captured government. Hence “The Money Trail” on OpenGovernment, e.g., for Texas, is a vital resource for connecting bills, votes, and donations. The primary source for money figures is our much-appreciated and detail-oriented non-profit partners at the National Institute on Money in State Politics, who receive data in either electronic or paper files from the state disclosure agencies with which candidates must file their campaign finance reports. Future enhancements to OG will integrate with MAPLight‘s unique analysis of industries supporting and opposing individual bills with their donations. MAPLight has data for CA and WI we’re looking to bring in, with more to come.
- Project VoteSmart’s API brings in special-interest group ratings for state government and allows OpenGovernment to highlight the most-impactful legislation in each state, marking their non-partisan “key vote” bills (e.g., for TX). VoteSmart does remarkable legislative analysis that neatly ties in bills to issue areas, but VoteSmart doesn’t have a built-in money-in-politics tie-in on their pages, or tools to track and share legislation. (This is just another way in which OpenGovernment, by aggregating the best available data in a more user-focused design, adds value, we hope, in an open-source Web app, about which more below.) Project VoteSmart’s work is hugely valuable, but the data is again ornery — special interest group ratings are frequently sparse and vary in scale, and are therefore difficult to accurately summarize or average — so for members, where applicable, we show a total of the number of ratings in each category (e.g., for TX Sen. Dan Patrick) and link to a fuller description.
- Wikipedia – OG first attempts to match on a legislator’s full name to a bio page on Wikipedia, with largely good but occasionally false-positive results. Of course many politicians go by nicknames, so this is a straightforward enhancement we’ll make once we can prioritize it with our available resources. See, e.g., TX Sen. Joan Huffman on OG, and her bio on Wikipedia.
- Twitter – OG has first-pass implementation of bringing in mentions of a state hashtag and bill number, e.g., #txbill #sb7, and for members, state name and legislator name, e.g., Texas Joan Huffman. This is another relatively straightforward engineering enhancement that we can make more responsive and more accurate with additional resources — for example, bringing in more accurate mentions and highlighting ones made by influential publishers on social media. Spending our time working within walled gardens to capture mentions of key votes isn’t inherently pleasant, but bringing out vital chatter onto the open Web and making it available via our open API will be worth the time and investment.
- Miro Community, free and open-source software from PPF’s sibling non-profit the Participatory Culture Foundation (PCF), makes it possible to crowdsource streaming online video about state legislatures (e.g., CA).
The OpenGovernment.org Web app is free, libre, and written in open-source Ruby on Rails code (developer hub). Like OpenCongress, the site is not-for-profit, non-commercial, promotes #opengovdata, open standards, and offers an open API, with volunteer contributions and remixes welcome and encouraged. Two features: most pages on the site are available for query via JSON and JSONP; and we offer free lookup of federal and state elected officials by latitude / longitude by URL. PostgreSQL and PostGIS power the back-end — we’ve seen with OpenCongress that the database of aggregated info can become huge, so laying a solid foundation for this was relevant in our early steps. The app uses the terrific open-source GeoServer to display vote maps — many enhancements possible there — and Jammit for asset packaging. For more technical details, see this enjoyable Changelog podcast w/ Carl from February 2011.
Web design on this beta OG Web app is by PPF and PCF’s former designer (and still good friend after an amicable parting) Morgan Knutson, now a designer with Google. As product manager, my goal was creating a user interface that — like the code base — would be as modular as possible. Lots of placeholder notes remain throughout the beta version pointing to areas of future enhancement that we can pursue with more resources and open-source volunteer help. Many of the engagement features of the site — from tracking to commenting to social sharing — were summarized brilliantly by Rob Richards in this Slaw.ca interview with me from July 29th, 2011 — viz., walking users up the “chain of engagement.” It’s a terrific, much-appreciated introduction to the civic-engagement goals of our organization and our beliefs regarding how well-designed web pages can do more than one might think to improve a real-life community in the near-term.
More on open government data and online civic engagement
To briefly run through more academic or data-driven research on the public benefits of #opengovdata and open-source Web tools for civic engagement (not intended to be comprehensive, of course, and with more caveats than I could fit here) :
- Tiago Peixoto of the World Bank — @participatory on micropublishing — lots of academic studies
- David Eaves, open data activist based in Canada — see also Open Gov Data camp (summary, official)
- “Open Data is Civic Capital: Best Practices for ‘Open Government Data'”, essay (rev. Jan. 2011) by Joshua Tauberer, our longtime data partner behind GovTrack and part of the new POPVOX team in the #gov20 startup landscape
- Wiki Government — book by Prof. Beth Noveck — and Open Government — book by O’Reilly Media, edited by Daniel Lathrop & Laurel Ruma.
- My #opengov curated list on Twitter (@ppolitics).
- Civic Software Index, crowdsourced spreadsheet coordinated by our terrific allies abroad, OKFN and MySociety (primarily UK — and PPF’s primary inspiration to create OpenCongress in the U.S.)
- Various allied non-profit organizations and data partners listed in the footer of PPF’s homepage, especially Sunlight in D.C. and CivicCommons (also based in NYC — with a deeply rich wiki of #opengov resources)
OpenGovernment.org: Some metrics
To wrap up this summary of OpenGovernment in 2011, then, I’ll summarize some of the metrics we’ve seen on Google Analytics — with limited outreach and no paid advertising or commercial partnerships, OpenGovernment beta with its six states will have received over half a million pageviews in its first year of existence. As with OpenCongress, by far the most-viewed content as of now is bills, found via search engines by their official number, which send approximately two-thirds of all traffic (and of that, Google alone sends over half). Hot bills in Texas and the WI organizing bill constitute three of OG’s top ten most-viewed pages sitewide. After hearing about a firearms bill in the news or from a neighbor, for example, users type “texas bill 321” or “sb 321” into Google and end up on OG, where they’re able to skim the bill’s news coverage, view the campaign contributions (for example) and interest group ratings (for example) of its authors and sponsors, and notify their legislators of their opinions by finding and writing their elected officials.
OpenGovernment.org: Next steps, and How you can help
In addition to rolling out to all 50 U.S. states and launching pilot projects in municipal areas, one of our main goals for OpenGovernment is integration with the free organizing features we launched this past summer on OpenCongress version 3. Enabling OG users to email-their-state-reps directly from bill pages will significantly increase the amount of publicly transparent, linkable, query-able constituent communication on the open Web. Allowing issue-advocacy organizations and political blog communities to create campaigns as part of future MyOG Groups will coordinate whipping of state legislators for a more continually-connected civic experience. And as always, tweaks to the beta site’s user interface will allow us to highlight the best-available information about how money affects politics and votes in state legislatures, to fight systemic corruption, and to bring about a cleaner and more trustworthy democratic process. Help us grow and contact us anytime with questions or feedback. As a public charity, PPF aspires to be grow to become more akin to the Wikimedia Foundation (behind Wikipedia), Mozilla (behind Firefox), and MySociety (behind TheyWorkForYou, for the UK Parliament, and other projects). We’re working towards a future where staying in touch with what’s happening in state capitols is just as easy and as immediately rewarding as, for example, seeing photos from friends on Facebook, sharing a joke on Twitter, or loading a movie on Netflix.com.
In his recent post, Fastcase CEO Ed Walters called on American states to tear down the copyright paywall for statutes. States that assert copyright over public laws limit their citizens’ access to such laws and impede a free and educated society. Convincing states (and publishers) to surrender these claims, however, is going to take some time.
A parallel problem involves The Bluebook and the courts that endorse it as a citation authority. By requiring parties to cite to an official published version of a statutory code, the courts are effectively restricting participants in the legal research market. Nowhere is this more evident than in those states where the government has delegated the publishing of the official code to a private publisher, as is the situation in more than half of the states. Thus, even if the state itself or another company, such as Justia, publishes the law online for free, a brief cannot cite to these versions of the code.
To remedy this problem, we (and others) propose applying a system of vendor neutral (universal) citation to all primary legal source material, starting with the state codes. Assigning a universal, uniform identifier for state codes will make them easier to find, use, and cite. While we do not expect an immediate endorsement from The Bluebook, we hope that once these citations find their way into the stream of information, people will use them and states will take notice. We think it’s time to bring disruptive technology to bear on the legal information industry.
About Universal Citation
“Universal citation” refers to a non-proprietary legal citation that is applied the instant a document is created. “Universal citation” is also called a “vendor-neutral,” “media-neutral,” or “public domain” citation. Universal citation has been adopted by sixteen U.S. states in order to cite caselaw, but universal citation has not yet been applied to statutes by any state. A review of universal citation processes for caselaw is helpful in understanding how we may apply universal citation to statutes.
Briefly, a case follows this process before appearing as an official reported decision:
When issuing a written decision, a court first releases a draft called a slip opinion, which is often posted on the court’s Website. Private publishers then republish the slip opinion in various legal databases. A party can cite the slip opinion using a variety of citation formats, depending on the database.
Afterwards, the court transmits the slip opinion to the jurisdiction’s Reporter of Decisions, who may be a member of the judicial system or a private company. The Reporter edits the opinions, and then collects and reprints them in a bound volume with a citation. To cite a particular page within a case, which is also referred to as pinpoint citation, a party cites the case name, the publication, the volume, and the specific page number that contains the cited content.
Before the advent of electronic publishing, these books were the primary source for legal research. And, while publishers still print cases in book format, the majority of users read the cases in digital form. However, opinions in online database lack physical pages. To address this, online publishers insert page numbers into the digital version of an opinion to correspond to page breaks in the print version. Thus, the pinpoint citation (or star pagination) for an opinion, whether in print or online, is the same.
Under most court rules, and Bluebook guidance, once the official opinion is published, the Reporter citation must be used (see Bluebook Rule 10.3.1).
The decisions are published by a private company, usually Thomson West, and anyone wanting to read them must license the material from the company. Thus, if you want to cite to judicial law, you must pay to access the Reporter’s opinions. (Public law libraries offer books and database access, but readers must visit the physical library to use their resources. Google Scholar also provides free access to official cases online, but they must pay to obtain and license the opinions. In other words, Google, not the end user, is paying for the access.)
Universal citation bypasses the private publisher, and allows courts to create official opinions immediately. Under this system, judges assign a citation to the case when they release it. They insert paragraph numbers into the body of the opinion to allow pinpoint citation. This way, the case is instantly citeable. There is no intermediary lag time between slip and official opinion where different publishers cite the case differently, and there is no need to license proprietary databases in order to read and cite the work. In the jurisdictions that have adopted this system, the court’s opinion is the final, official version. Private publishers may republish and add their own parallel citations, but in most jurisdictions the court does not require citation to private publishers’ versions. (However, Louisiana and Montana require parallel citation to the regional reporter.)
The American Association of Law Libraries (AALL) developed the initial standards for vendor neutral citation formats. AALL published the Universal Citation Guide in 1999, and released an updated edition in 2004. The Bluebook adopted a similar scheme in Rule 10.3.3 – Public Domain Format. Under this format, a universal citation should include the following:
- Year of decision
- State’s 2-letter postal code
- Court name abbreviation
- Sequential number of the decision
- “U” for unpublished cases
- Pinpoint citation should reference the paragraph number, instead of the page number
The majority of states employing universal citation follow the AALL/Bluebook standard, but a few have adopted their own styles. (Illinois, Louisiana, Mississippi, New Mexico, and Ohio employ universal citation but use a different format than the AALL/Bluebook recommendation.)
Most states that use universal citation adopted it in the 1990s. Cornell Law Professor Peter Martin details these events in his article Neutral Citation, Court Websites, and Access to Authoritative Caselaw. Professor Ian Gallacher of Albany Law School has also written about the history of this movement in Cite Unseen: How Neutral Citation and Americas Law Schools Can Cure Our Strange Devotion to Bibliographical Orthodoxy and the Constriction of Open and Equal Access to the Law. To date, 16 states assign universal citations to their highest court opinions. (To date, Arkansas, Illinois, Louisiana, Maine, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Vermont, Wisconsin, and Wyoming have adopted universal citation for caselaw.) Illinois is the most recent state to adopt the measure (in June 2011), and the concept has been gaining traction in the legal blogosphere. John Joergensen at Rutgers-Camden School of Law started a cooperative effort called UniversalCitation.org this summer.
Universal Citation and State Codes
Applying universal citation to state statutes can provide the same benefits as to caselaw, making statutes easier to find and cite, and improving access. While all states publish some form of their laws online for the public, as Ed has noted, these versions of state laws are often burdened by copyright and licensing restrictions. With these restrictions in place, users are not free to reuse, remix, or republish law, resulting in stifled innovation and external costs associated with using poorly designed Websites that take longer to search.
Though the AALL provides guidance on universal citation for statutes, no state has adopted it. The Bluebook does not specifically reference universal forms of citations for statutes and generally requires citation to official code compilations. There are exceptions for the digital version of the official code, parallel citations to other sources, and the use of unofficial sources where they are the only available source. (Bluebook Rule 12 provides for citation to statutes, generally. The Bluebook addresses Internet sources in Rule 18.)
The AALL’s Universal Citation Guide provides a schema for citing statutes in a neutral format. Rules 305-307 lay out standardized code designations, numbering, and dating rules, and each state has a full description in the Appendices. Basically, the format uses the state postal code, abbreviations for the name of the statutes (Consolidated, Revised, etc.), and a date.
As a result, the universal citations look similar to the official citations.
The AALL universal citation uses a name abbreviation for the state name and the name of the statute compilation. AALL’s format does not use periods in the abbreviations. It also uses a different convention for the year. The Guide’s recommendation is to date the code by a “legislative event,” to make the date more precise. Using “current through” dating provides a timestamp for the version of the code being used. This approach is less ambiguous than listing simply the year.
States like California and Texas have very large, segmented code systems with more complicated official citation schemes. The AALL mirrors these with the universal version, giving each subject matter code an abbreviation similar to the one used by The Bluebook.
Universal citation does not designate whether the code version is annotated, and of course it does not mention the publisher of the source.
Experimenting with Universal Citation
Justia is now applying the AALL’s universal citation to the code compilations on our site. We add this citation to the most granular instance of the code citation, along with a statement identifying and explaining it. So far, we’ve added citations to the state codes of Hawaii, Idaho, Maine, and South Dakota.
We started with Hawaii. The official citation and the universal citation are fairly similar:
Official: Haw. Rev. Stat. § 5-9 (2010)
Universal: HI Rev Stat § x-x (2010 Reg Sess)
This is how the code looks on the Hawaii Legislature’s site:
This is how the code section looks on Justia. We added the citation right above the text of the statute.
On our site, the full citation is visible, so readers can quickly identify and cite to it. The “What’s This?” link next to the citation explains the universal citation.
We used the Legislature’s site to determine the date.
We also added the universal citation to the title tags. This allows search engine users to see the universal citation in their search results. It makes the search results more readable, because the text of the statute name appears next to the citation. For example, compare a search for “Haw Rev Stat 5-9”
with “HI Rev Stat 5-9”:
With the search results for the universal citation (properly tagged), more information about that citation is presented. This helps the user quickly identify and digest the best search results.
We hope to accomplish three objectives by attaching universal citations to our codes. First, we want to give people an easy way to cite the code without having to look at proprietary publications. Not all citation goes into legal briefs or other documents that require formal citation to “official” sources listed by The Bluebook. The AALL universal citation scheme is easy to read and understand, and uses familiar abbreviations (like postal codes). Providing a citation right on the page of the code section will help people talk about, use, and cite to code sections without having to access “official” sources behind a paywall.
Second, we hope to demonstrate that universal citation can be applied in an easy and straightforward manner. The AALL has already developed a rigorous standard for universal citation; we are happy to use it and not reinvent the wheel. Legal folks here at Justia researched the AALL citation and the proper year/date information, and programmers applied the citation to the corpus. Anyone can do this, including the states.
Third, we want to encourage the adoption and widespread use of vendor-neutral citation schemes. There’s been a lot of talk about vendor-neutral citation for caselaw, and we are excited by efforts like UniversalCitation.org. Applying these principles to state codes will help get universal citation into the stream of legal information online. Just seeing the citation and the “What’s This?” page next to it will introduce readers to the concept. The more people use universal citations for state statutes, the more states will be forced to examine their reliance on third party publishers as the “official” source.
We plan to apply the universal citation to all of the codes in our corpus, but we have encountered some obstacles to achieving this for all 50 states. First, some of the codes are quite large and difficult to parse. Ari Hershowitz has documented his efforts to convert the California code into usable HTML. States like California, Texas, and New York will be more labor intensive. Second, the currency, or timestamp, is not always readily apparent on the state code site. With Idaho, I had to make a call to the Legislative Office to find out exactly when they last updated the code.
The third, and perhaps most troubling, issue is the “unofficial” status of the online state code repositories. With the exception of a few states (see Colorado), the codes hosted on the states’ own Websites are papered over with disclaimers about their authenticity. While I understand the preference for “official” sources when citing a code, there seems to be no good reason why the official statutes of any state are not available online, for free, for everyone. These are the laws we must obey and to which we are held accountable. Does the public really deserve something less than official version? The states are passing the buck by disclaiming all responsibility for publishing their own laws, and relying on third-party publishers, which charge taxpayers to view the laws that the taxpayers paid for. I hope that as we apply a universal citation to our state statutes, the law will become more usable for the public. By taking disruptive action and applying these rules to our large corpus of data, we hope that more people will see the statutes and cite using universal principles, and that the states will take notice.
We have assigned a universal citation to the first few states as a proof of concept. We will also be sharing our efforts by supplying copies of the code with the universal citations included for bulk download at public.resource.org. As we move forward with the remaining 46 states, we would love your input. Comment here or contact me directly with your thoughts.
Peace and Onward.
[Editor’s Note: For other VoxPopuLII posts on universal citation and the status of content in legal repositories, see Ivan Mokanov’s post on the Canadian neutral citation standard, and John Joergensen’s post on authentication of digital legal repositories.]
Courtney Minick is an attorney and product manager at Justia, where she works on free law and open access initiatives. She can be found pushing her agenda at the Justia Law, Technology, and Legal Marketing Blog and on Twitter: @caminick.
VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.
In May of this year, one of us wrote a post discussing two research projects being conducted at the University of Montreal’s Chair in Legal Information. One of those projects, known by its team as the “Free Access to Law – Is It Here to Stay?” Project, has just concluded. This co-authored post is about that project, the stories we heard throughout conducting the research, and what we can learn from those stories about sustaining legal information institutes (LIIs) — a concern that came up on many occasions at this year’s Law via the Internet Conference in Hong Kong, and again in the blogosphere in Eve Gray’s recent post, and Sean Hocking’s post on Slaw, among others.
The first section of this post — written by Isabelle Moncion of Lexum — is about the “Free Access to Law – Is It Here to Stay?” project as a whole, and the second portion, written by AfricanLII co-founder Mariya Badeva-Bright, focuses on lessons learned as applied to The African Legal Information Institute (AfricanLII).
First, a few words about the methodology of the “Free Access to Law – Is It Here to Stay?” project. In 11 countries and regions –- Burkina Faso, Hong Kong, India, Indonesia, Kenya, Malawi, Mali, Niger, the Philippines, South Africa, and Uganda –- researchers under the coordination of the Chair in Legal Information, AfricanLII, and the Centre for Internet and Society interviewed users of Free Access to Law (FAL) services, and practitioners who create and maintain those services, for purposes of building case studies on one FAL initiative per country. The research was guided by the Local Researcher’s Methodology Guide, which among other things asked the question, “What determines the sustainability of operations of Free Access to Law initiatives?” Along with the case studies (available here, published in the language in which they were written), a Good Practices Handbook (humbly renamed “Good” rather than “Best,” as stories from the FAL initiative showed that unfortunately, but not surprisingly, an always-successful series of practices does not exist) was written based on the results found in the case studies. The handbook will be online soon.
Do check out the case studies and good practices to find out more, as they will be able to provide you with much more in-depth analyses than we can provide in this post. But for now, allow me (Isabelle Moncion) to share a few stories and observations, and perhaps a preview of some good practices, before Mariya shows how these stories can be applied to building new, and supporting existing, LIIs.
Sustainability… isn’t just about funding –
This statement is as much a conclusion from the case studies as it is the result of group discussions — held prior to the field research — devoted to defining “sustainability.” Did sustainability mean how we fund LIIs, or was it start-to-finish practices leading to that funding? We went with the latter, and field stories showed that that was the right choice.
Organisational capacity is pivotal to a FAL initiative’s capacity to stick around. In Mali, funding wasn’t so much the issue: the FAL site disappeared when the student intern who had decided to launch the site — after noticing the immense quantity and quality of legal information available at the NGO where he was working, and concluding that this information should be made available online — completed his internship. In Indonesia, funding is without a doubt a challenge, but the Indonesian FAL site currently depends on a single individual, who is unable to devote the time required to maintain the site. The situation is similar in Niger, where the editor must go from court registry to court registry with an external hard drive to collect judgments. The Hong Kong Legal Information Institute‘s (HKLII’s) team is also small, but thanks to a judiciary-supported workflow, the team has been able to offer its users a high quality, reliable service. The Southern African Legal Information Institute (SAFLII) case study further demonstrates that organisational capacity facilitates response to financial crises. To quote from the Good Practices Handbook, “… it is important to build redundancy and transfer knowledge to ensure continuity even on tight budgets. Having a meaningful internship programme with intense mentoring covering the two core skill areas of IT [information technology] and content management, coupled with good documentation, could contribute enormously to the viability of the FAL initiative.”
Organisational capacity also means knowing where one is headed. How many FAL initiatives did we encounter, whose personnel told us their objective is to “reinforce the rule of law” and their target audience is “everyone”? These are no doubt admirable and overarching goals of FAL, but if not coupled with specific objectives, these goals do little to help determine an organisation’s priorities and response to the needs of a particular stakeholder group that is potentially capable of financing the FAL initiative in the future.
Innovation… isn’t just another buzzword –
After using “sustainability” as many times as I have in this post, and now throwing in “innovation,” I beg you to indulge me in this section, and assure you that I will attach meaning to my list of buzzwords. (I promise I’ll save “empowerment” or “participatory governance” for another day, but I may have to use “capacity building” soon.)
Innovation seems like an obvious “good practice” –- but what does it mean in the context of FAL? Many organisations now claim to have “innovation” as part of their values, but as Ginger Grant pointed out so well at a conference on Managing by Values, when asked, “Who are the organisation’s troublemakers?” bosses and managers seem proud to reply that they have none. Well if you have no troublemakers, asks Grant, who’s innovating?
Small FAL teams with limited resources have been able to succeed. Small teams seem to favour the birth of new ideas, which face less resistance than they may in larger teams. Larger teams have managed to reach their size precisely because they initially did something that no one else was doing at the time, but staying innovative can become an increasingly challenging feat.
Having a team knowledgeable in both (legal) information management and IT, knowing who the users are and what their needs are (e.g., making the effort to find out why and how users use the service, and how else they might use the service if resources were unlimited; using Web 2.0 technologies for all they have to offer respecting getting user feedback; etc.), and staying in touch with others doing similar work (the Free Access to Law Movement (FALM); the open source software movement; various open-access, access-to-knowledge, open-knowledge, etc. movements) are just some of the ways FAL initiatives have managed to stay ahead of the curve. This is in part how SAFLII and Kenya Law Reports became among the first LIIs to look in to mobile services. This is how the Canadian Legal Information Institute (CanLII) began offering point-in-time comparison of statutes. This is also how Indian Kanoon — described in this VoxPopuLII post — rests upon a single software engineer and hasn’t stopped growing since its launch.
Where there’s a will –
… there may not always be a way, but there is definitely no way without a will.
In any of the eleven countries studied, the success of FAL initiatives is often the result of key individuals passionate about the task at hand. In places where FAL initiatives have suffered, it is again often the result of lack of interest or competing priorities. Working to (here it comes) build capacity and foster innovation is the M.O. of FAL practitioners motivated often by nothing more than a conviction that “it’s the right thing to do.”
And I hear now what we’ve been told so often throughout the course of the study: “But what do you do when there just isn’t any money?” Of course, this is a monumental challenge for a number of FAL initiatives, but where legal information is being produced, legal information needs to be accessed. The beauty (and essence) of FAL is that content is available to users accessing content for professional reasons, and to any other user, whether he or she is interested in legal information for personal matters, education, social justice, etc. But each of those users may have different needs, and going back to what I was saying above, this is why, particularly with limited resources, it’s important to know whose needs will be prioritized.
Users requiring legal information for their profession are a great stakeholder to target, as they are likely to come with funds. Insure they are receiving a service that facilitates their work and they will see benefit in ensuring the service stays around. (This is part of CanLII’s story.) But, as in the case of West Africa, the legal profession itself isn’t always well funded. So, although I started by stating that sustainability wasn’t all about funding, allow me to conclude by admitting that funding is often FAL initiatives’ greatest concern. In the course of the study, we identified the following funding sources:
- Advertising on the FAL initiative’s Website
- Government, including the judiciary
- International development agencies
- Law societies
- NGOs, or members of civil society with similar missions
- Private donations from users
- Selling parallel, value-added services to subsidize the FAL portion of the initiative
- University grants
Funding from each of these sources comes with strengths and challenges, but such funding also comes with the risk of drying up. Sustainable FAL initiatives have been able to offer user-targeted services, and to identify funding sources accordingly.
The lessons from the Free Access to Law Study
Access to the law of many African countries is difficult, as this law is either locked away in expensive commercial databases, only available in a few law libraries housing out-of-date law reports, or simply not available. The free access to law movement in Africa, through the pioneering efforts of the Southern African Legal Information Institute (SAFLII) and the National Council for Law Reporting (incorporating Kenya Law Reports and KenLII), proved that this deplorable situation can be changed by applying information and communication technologies (ICTs) to the legal information domain. However, my personal experiences, and those of my team, in setting up and running SAFLII (until April 2010) revealed that the solution is not as easily implementable as we would have imagined it. Thoughts on the challenges faced are available through early VoxPopuLII posts by SAFLII’s team here and here.
Passion is a necessary prerequisite for a free access to law project to succeed. What we, then as a SAFLII team, learnt through our experience, was that besides zeal, IT expertise, and legal information knowledge, a great deal of business sense, structured business planning, and development were also required. We did have access to business expertise, but applying business principles to a novel, and non-profit, enterprise, without systematic guidance from those who had done it before, was very difficult. We learned to navigate the landscape “on the job.” The formulation of a business-development approach to these projects, without compromising the basic tenets of free access to law, has increasingly come into focus for many legal information institutes (LIIs) around the world and in Africa.
The first attempt at formalizing the business-development and project-management knowledge around free access to law projects was the sustainability study undertaken by LexUM and SAFLII in 2009, aptly entitled “Free Access to Law – Is It Here to Stay?” The methodology guide produced during the study was especially useful as the guide systematized all functional, operational, and strategic areas that a free access to law project should account for in its development. All areas would presumably contribute to the strengthening, hence sustainability, of such projects. While I should immediately discount the notion that all new and existing LIIs should be implementing the elaborate structures and extensive practices detailed in the methodology guide assessment matrix (and this is clearly what emerges when we review the case studies produced), a combination of approaches within the broad areas coupled with contextualization for each country would, in my opinion, foster the development of more sustainable LIIs. In that sense, a discernable outcome of the FAL study has been the elaboration of a blueprint for the development of LIIs. The blueprint is based on the collective, two-decades-old knowledge of the free access to law community.
A major aim of the study has been proving the social value that free access to law delivers. To put it squarely, that means linking free access to primary legal materials to values such as democracy, rule of law, and transparency, as well as to more concrete outcomes such as facilitating education and investment, professional capacity, etc. The study does not establish precise causal links between what FAL projects do and these high democratic values. The case studies are largely committed to individual stories that may serve as a basis for a larger study. But the study has managed to isolate links between processes, projects, outputs, and some outcomes of LII projects. The study, through the Good Practices Handbook, has identified causal links between a LII project’s design, implementation, and results. In doing so, the study has also provided the FAL and donor communities with a monitoring and evaluation framework for free access to law projects.
Free access to law projects are usually assessed on indicators such as numbers of documents published, the number of databases created, the number of unique visitors and hits to the Website, etc. But what meaning do growing document collections, growing usage, and a few words from grateful users have if the free access to law project does not use these indicators to channel support for its continued operation? The FAL study has provided us with means to identify priorities and determine the relevance of projects in terms of fulfilling objectives efficiently and effectively, all the while focusing on sustainability. The study provokes a FAL project manager to collect, and donors to seek, credible and useful information that will enable a clear picture of the status of the FAL project to emerge. In addition, incorporation of the lessons learned into the review and development of the project’s operations and strategy will be vital.
To sum up, the main lessons that I have learned from the free access to law study are about streamlining operations and strategy around core thematic areas crucial for the sustainable future of a free access to law project. As a core set of principles that should guide a LII, my LII blueprint includes the following highlights:
- Think sustainability from Day 1
- Demonstrate value from Day 2
- Build a solid organization (no matter how small)
- Identify champions for the cause and make friends for the LII
- Involve all stakeholders early in the life of the LII
- Be transparent about overall objectives and how to achieve them in an efficient and effective way
- Be transparent about income received and expenditures made
- Review strategy and develop operations with an aim of achieving sustainable free access to law
The approach to free access to law that my new project — the African Legal Information Institute (AfricanLII) — takes is in many ways informed by the “Free Access to Law – Is It Here to Stay?” study. Having had the benefit of working on both elaborating the study’s methodology and conducting two of the case studies, I feel that we can continue to develop and apply the knowledge thus gathered to building a solid foundation for free access to law in Africa. The AfricanLII will be the hub that provides that platform.
Many people had spoken about the idea of establishing an AfricanLII before my colleagues Tererai Mafukidze and Kerry Anderson and I decided to form the Institute. Naturally, there were differences of opinion about what AfricanLII should do and how it should be structured. The commonality was that all saw AfricanLII as a continental-wide portal of African legal information, similar to what WorldLII, CommonLII, and AsianLII offered. The AfricanLII that we envisaged, however, is a lot different from other systems. It is not a centralized access point for African primary legal information. AfricanLII does not collect, digitize, and publish directly legal information from African jurisdictions. We do facilitate finding that information via a federated search facility and the African Legal Index. We do plan on building services around African legal information. But AfricanLII’s mission is to enable access to African legal information by entrenching free access to law principles on national level. We do this by working with institutions in individual African jurisdictions, and helping them establish national legal information institutes and develop and maintain them in a sustainable way.
A standardized approach to delivering free access to law through a regional collection point is not a viable option in Africa. I have learned this through my experience working for a regional portal of free law — SAFLII — operating in the context of a diverse, largely non-digitized, legal information environment. The regional approach does go a long way to prove value and incentivize commitment from national institutions and donors, but it does not provide room for meaningful outcomes, engagement, and a sustainable future for the concept of free access to law on our continent. (See the SAFLII case study in the FAL Project Website for more details.)
AfricanLII works with national LIIs (currently SwaziLII, MalawiLII, MozLII, SeyLII, SierraLII, and LesothoLII) to translate their particular environments into successful and sustainable free access to law operations. We implement sustainability measures on both national and regional levels. For example, targeting government and professional users to support content collection and publication in a jurisdiction is best achieved when the free access to law project is based in that jurisdiction and constantly interacts with the stakeholders to improve the value of its offering. Value additions are also best achieved by locals. AfricanLII assists national LIIs in formulating and executing strategies around local engagement. As a regional hub, we implement sustainability initiatives that make sense only on a regional level. Website monetization activities — web advertisements, directory services, and services around aggregated content, such as news and legal content or free and premium commercial publisher content mashups — are all examples of projects that are best undertaken at a regional level, where more data and more traffic make the activities more profitable. Profits are then channelled into the free access to law work of national LIIs and AfricanLII. We have planned a rollout of financial sustainability initiatives that will take effect in the short, medium, and long terms.
Financial sustainability is achievable only if national LIIs stay on track and develop sound practices in pursuit of a clear strategy. AfricanLII provides contextual operational and strategic assistance, advice, and training to new LIIs which helps these projects develop to potential. In doing so, we engage in rapid skills transfer to organizations with little to no experience in free access to law projects. AfricanLII remains available for continued support beyond the initialization phase.
The Open Society Initiative of Southern Africa (OSISA), The Open Society Institute (OSI), and Freedom House have all provided start-up funding to AfricanLII and some of the national LIIs we support. AfricanLII has developed a monitoring and evaluation framework based on this FAL study which ensures that donor money is well spent and real outcomes are achieved. AfricanLII collects and presents donors with relevant, timely, and accurate information against indicators derived in a credible process.
In conclusion, the Free Access to Law study has had a tremendous, and perhaps not entirely expected, impact on the work of free access to law publishers in Africa. I expect that we will continue to use and develop the study to suit our projects and create new ones based on it.
Isabelle Moncion is a project manager with Lexum, and was a research assistant at the Chair in Legal Information of the University of Montreal until the end of the above described research project. She holds an MA in political science with a specialisation in international development from the University of Quebec in Montreal, and a B.Sc. in political science and communications from the University of Ottawa.
Mariya Badeva-Bright, Magister Iuris (Bulgaria), LL.M. (Law and Information Technology, Stockholm), co-founded AfricanLII as a project of the Southern Africa Litigation Centre, and works primarily on content, legal information management, electronic legal research training, and policy development for new LIIs in Africa. She is the former Head of Legal Informatics and Policy at SAFLII. She is also a sessional lecturer at the School of Law, University of the Witwatersrand, South Africa.
VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.
My father was, as was his father before him, a country lawyer in a remote but very beautiful part of South Africa, in the foothills of the Maluti mountains on the border between South Africa and Lesotho. Prominent in his legal office near the Magistrate’s Court were shelves of leather bound volumes of South African statutes, cases, and law reports, which I found impressive, with their gold blocking on red spines. Even back then, South African lawyers were well supplied with legal publications, the production of which dated back to the mid-19th century, when a Dutch immigrant, Jan Carel Juta (who was married to Karl Marx’s sister) published the first law reports. This means that the legal profession in South Africa has access to a century and a half of legal records, something of undoubted value, given that many African countries have no legal publications at all.
If it was a court day, one could hear from my father’s office the hubbub of conversations in Sotho, Xhosa, English, and Afrikaans floating down the road from outside the Magistrate’s Court, where blanket-clad Sotho men down from the mountains had tied up their horses at a hitching post alongside police vans and farmer’s trucks.
This was Wild West country in the 19th century — and cross-border cattle rustling cases continue to figure large — but when I grew up, in the wake of the Second World War, it presented itself as a quiet village, in a prosperous farming area surrounded by very large ‘trust lands’ (in colonial- and apartheid-speak) of traditional Black peasant communities, where the place names were those of the presiding chiefs. This naming was a symptom of the colonial manipulation of the legal system, described by Mahmood Mamdani, to impose an autocratic and patriarchal ‘customary’ system, a heritage that lingers on in a democratic South Africa. In a legal practice like my father’s, there was a startling dichotomy between the well-paid work done for the prosperous white community with its commercial- and property-law needs, and the customary-law and criminal cases that came from the overwhelmingly larger black communities, dependent on legal aid or paying their fees in small cash installments to a clerk in a back office.
I was thus aware at a young age of conflicting values at the intersection between western concepts of the law, its formal and Latinate expression and punctilious enforcement, and the needs of rural black communities; the problematic role that language played in the adversarial ritual of criminal court procedure, alien to many participants; and the difficulties inherent in responding to the needs of very large and widely geographically dispersed poor and disenfranchised communities. The stories my father told about his days in court as a defending attorney were often tales of incomprehension compounded by mistranslation.
This rural setting provides a vivid and useful map of divergent needs for access to legal information in the complexity of an African context. In fact this setting throws a stark spotlight on issues of legal access that are easily obscured in the global North. In an urban setting in South Africa, the issues would be different respecting details, but generally the same: the question is how to bridge the gap between the formalities and rituals of colonially-based and imported legal discourse and the ways in which the legal system impacts on the lives of most of the population. In this context, how does one transform into action Nick Holmes’s concerns, as expressed in his VoxPopuLII blog, about making the law accessible, i.e., suited to meeting the needs of citizens and lawyers in less privileged practices, in an appropriate language and format? Or, to use Isabel Moncion’s distinction between the law and justice, how does one communicate the law in such a way as to reach the people who need the information? And lastly — of vital importance in an African setting where resources are scarce — how does one make such a publishing enterprise sustainable?
I do not come to this discussion with a legal training. I would have become a lawyer, no doubt, like the generations of my father’s family, but 1950s gender stereotypes got in the way. Instead, I became an academic publisher, and then a consultant and researcher on the potential of digital media in Africa. This trajectory gives a particular coloration to my concerns for access to legal information in Africa: my approach brings together an acknowledgement of the need for professional skills and sustainability with an awareness of the serious limitations of the current publishing regime in providing comprehensive access to legal information.
Law publishing in South Africa
The fact that South Africa has a well-established legal publishing sector sets that nation apart from the rest of Africa. The strength of the legal publishing industry is a reflection not only of South Africa’s prosperity, but also of the distinctiveness of the South African legal system, a fusion of Romano-Dutch and British legal traditions. The uniqueness of this system meant that South African law publishing could not rely on purely British sources, and gave local South African legal publishers a market not subject to competition from Britain. However, the nature of this legal system also gave it a tendency, at least in its early stages, towards a particularly impenetrable mode of expression, fueled by the Latinisms of its Roman roots.
Lawyers in practice, the legal departments of big companies, and the courts are relatively well served by the South African legal publishing industry, and the system is self-sustaining. However, there are problems. One is that the industry still clings to print-based business models. The focus is on the readership that can pay and on the topics that are of interest to this readership. The danger resides in seeing this situation as sufficient: in seeing the relatively wealthy market being served as the whole market, and the narrow range of publications produced as satisfying the totality of publication needs. With the South African legal profession still struggling to diversify out of white male dominance, this is an important issue.
As global media have consolidated in the last few decades, South African legal publishers have shown a decreasing willingness to try to find ways of addressing commercially marginal markets. This has meant that, although mainstream legal publishers in South Africa have long produced digital publications, there is reliance on a high-price market model. In other countries one might talk of a failure to address niche markets, but in South Africa it is the mass of the population who are marginalised by this business model. A smaller specialist publisher, Simon Sefton’s Siber Ink, seems more aware than the bigger players of the need for accessible language and affordable prices for legal resources, as well as active social media engagement to create debates about key community issues.
Some hope of solutions to the question of access by otherwise marginalised readers lies in the development, on the margins of the publishing industry, of innovative smaller players leveraging digital media to reach new readerships, often using open source models that combine the free and the paid for.
Access to legal information – The role of government
The main efforts being put into access to legal information in South Africa are quite rightly focusing on government-generated information, which, being taxpayer funded, should be in the public domain and is indeed available on the South African Government Information site. Progress is being made by the Southern African Legal Information Institute (SAFLII) in improving the accessibility of primary legal resources, and success would mean the availability of a substantial body of information that would then be available for interpretation and translation.
Beyond this, government practice in ensuring this level of access is patchy. Some departments are good at posting legislation on their Websites, others less so. Government Gazettes, although theoretically accessible to all, can be difficult to find and navigate; and the collation of legislative amendments with the original Acts is also patchy. There is — at least in theory — an acceptance of the need in government for an open government approach, but the fact that there is a publishing industry serving the profession and the courts ironically reduces the pressure to achieve this goal.
The Truth and Reconciliation Commission
There is a danger, however, when government sees the print-publication profit model as the natural and only way of producing sustainable publications. This was brought home in 1998 with a very important publication: the Report on the Truth and Reconciliation Commission (TRC). This sad and salutary story is worth telling in some detail. But first, a disclaimer: I was working at the time for the company that distributed the Report, and I was actively involved in securing the bid from publishers, although I was not supportive of the business model that was imposed in the end.
Five volumes of testimony, analysis, and findings from the Commission were produced to high production standards. The compilers saw the archival material that lay behind these volumes as ‘the Commission’s greatest legacy’ and the published volumes as ‘a window on this incredible resource, offering a road map to those who wish to travel into our past’ (p.2). The Department of Justice, working on the stereotypical view of how publication works, insisted that production and printing costs had to be fully recovered. The Department set a high price to be charged by the appointed distributor, Juta Law and Academic Publishers.
The second set of problems arose with the digital version of the publication that Juta had offered to develop. The digital division of the legal publisher insisted on high prices. It was this inappropriate digital business model that created a row in the press. Then, a ‘pirate’ version of the publication was produced by the developer of the TRC Website, who claimed that he had the rights to a free online product. Public opinion was firmly behind the idea that the digital version should be free and that the publisher was profiteering out of South Africa’s pain.
In the end, hardly any copies of the Report were sold. The lesson was a hard one for a publishing company: digital content that is seen as part of the national heritage cannot be subjected to high-price commercial strategies.
The full text of the TRC Report is now online on the South African Government Information Website.
Leaping the divide – Law and land
What is more difficult and diffuse is the route to providing access to really useful information that could help communities engage with the impact of legislation on their lives, whether the issue be housing policy or land tenure legislation, gender rights or press freedom.
If we go back to my initial example of rural communities and their access to the law, there is a dauntingly wide range of issues at stake — questions of individual agency, gender rights, fair labour practice, property rights and access to land, food sustainability, and a number of human rights issues — including legislative process as the ANC government implements the Communal Land Rights Act of 2004. In Matatiele, the village in which my father practised, there has been a long-drawn-out dispute about provincial boundaries, with the community challenging the legislative process in the Constitutional Court.
Questions of access to this kind of information are addressed in an ecosystem broader than the conventional publishing industry. NGOs and research units based in universities and national research councils address the wider concerns of community justice; using a variety of business models, these organizations produce a range of publications and work closely with communities. In the case of the Communal Land Rights Act, the Legal Resources Centre (LRC) supported a Constitutional Court challenge and published a book on the Act and its problems. The LRC, like other organisations of its kind, makes booklets, brochures, and reports freely available online. These efforts tend to be donor-funded and, increasingly, donors like the Canadian International Development Research Centre (IDRC) insist that publications be distributed under Creative Commons licenses. In the case of books published by commercial publishers, this means an open access digital version, and a print version for sale.
A major problem in providing commentary on legislative issues for the general public is that of ensuring a lack of bias. In the case of the Communal Land Rights Act — as well as for the other critical justice issues that it covers — the LRC explicitly aimed to provide a comprehensive insight into the issues for experts and the general public; the Centre accordingly placed the full text of its submissions to the hearings as well as answering affidavits on a CD-ROM and online. It also produces a range of resources, online text, and audio, targeted at communities.
Similar publication efforts are undertaken by a number of other NGOs and research centres — such as the Institute for Poverty, Land, and Agrarian Studies (PLAAS) at the University of the Western Cape and the African Centre for Cities at the University of Cape Town — on a wide range of issues. These organizations’ publishing activities tend to be interdisciplinary and the general practice is to place reports and other publications online for free download. There is a growing wave, in scholarly publishing in particular, to seek a redefinition of what constitutes ‘proper’ publishing; this process has yielded the notion of a continuum between scholarly (and professional) work and the ‘translation’ of this work into more accessible versions.
A useful strategic exercise would be to tag and aggregate the legal publishing contributions of NGOs and research centres — as these resources are often difficult to track, or hidden deep in university Websites — preferably with social networking spaces for discussion and evaluation.
These civil society publishers are generally dependent on donor funding. What is needed is to recognise them as part of the publishing ecosystem. The question is how to create publishing models that can offer longer-term sustainability that might work beyond a well-resourced country like South Africa. The most promising and sustainable future looks to be in small and innovative digital companies using open source publishing models, offering free content as well as value-added services for sale. Examples are currently mostly to be found in textbook and training models, like the Electric Book Works Health Care series, which offers free content online, with payment for print books, training, and accreditation.
What is clear is that multi-pronged solutions must be found over time to the question of how to bridge the divide in African access to reliable and relevant legal information, and that a promising site for these solutions is the intersection between research and civil society organisations and community activists.
Eve Gray is an Honorary Research Associate in the Centre for Educational Technology at the University of Cape Town and an Associate in the IP Law and Policy Research Unit. She is a specialist in scholarly communications in the digital age, working on strategies for leveraging information technologies to grow African voices in an unequal global environment.
Photos: Eve Gray CC BY
VoxPopuLII is edited by Judith Pratt. Editor-in-Chief is Robert Richards, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer in the Cornell LII Lawyer Directory.
In 2008, the State of Oregon sent a takedown notice to Tim Stanley, asking him to remove copyrighted material from Justia, Stanley’s pioneering free law website. Such takedown notices are relatively common in the world of Napster, YouTube, BitTorrent, and LimeWire. However, Stanley, the founder of FindLaw, and later Justia, wasn’t publishing music or video. He was publishing the Oregon Revised Statutes on his website, and the State of Oregon claimed that Justia’s free version of the statutes was infringing its copyright.
That’s right: the State of Oregon claimed a copyright in its statutes, and it wanted to enforce that copyright against a company publishing them for free online.
The conflict was resolved amicably, with the state inviting Tim and Public.Resource.org’s Carl Malamud to Salem for a public hearing, in which the state decided to revoke its takedown demand. But the compromise was an uneasy one. Oregon did not disclaim copyright in the statutes — it merely agreed not to enforce its copyright claim against Justia and Public.Resource.org. This limited waiver means that anyone else who publishes (or quotes) Oregon statutes would face a similar specter of copyright infringement.
This may seem like an isolated incident — perhaps the work of a renegade legislative staff member with an ambitious view of copyright law. But this incident isn’t isolated. LexisNexis believes that it owns the Georgia Code. And the statutes of Colorado, Wyoming, and Mississippi. The free Websites of many state legislatures contain copyright notices warning the world that copying public law is illegal and punishable under copyright law.
Copyright in public law means that a state or a publisher could restrict fundamental rights in law. Things like copying — even citing the law in a brief — could be considered an infringing use. This makes lawyers, journalists, the public, and even judges into pirates when they quote from statutes. It subjects innovators, entrepreneurs, and other publishers, who could introduce competition in legal publishing, to potential copyright liability. It chills innovation and blocks the widespread publication of the law.
And although statutes are clearly in the public domain, they are one of the last bastions of closed-source content on the Internet. A combination of state budget cuts, our antiquated process for codifying the law, and aggressive contract terms from publishers have conspired to create private copyright claims in public law.
How did we get to this state of affairs? How can any commercial publisher believe that it “owns” our public law? Can a publisher’s claims to intellectual property in a state’s laws possibly be enforceable? And what can we do about it?
I’m tired of copyright being used to monopolize public law. This post should establish once and for all that copyright doesn’t protect public statutes, legislatures can’t grant private copyrights, and contract code publishers who mix their editorial work with state statutes can only claim very limited protection under copyright. It’s time for publishers, legislatures, and innovators to open state statutes.
How Can a Publisher Copyright Statutes It Didn’t Write?
At the outset, it seems crazy to say that publishers can copyright the law at all. After all, legislators draft, debate, amend, and pass the law, and governors sign bills into law. Most people consider statutes to be written by the people, since they are written on the people’s behalf by their elected representatives.
Publishers don’t write the law. So how can they claim copyright in it?
Raw bills signed into law by governors aren’t the same thing as the codes that appear in bound volumes on the shelves. Statutes and codes are organized into outlines, with similar topics bunched together into titles, chapters, and sections. So, for example, a state’s election laws might all appear within the same title in the state code. This “codification” process is sometimes dictated in the bill itself (especially when the bill amends an existing statute on the books), but often the codification process is left up to editors after the fact.
In addition, most codified statutes have headlines (called “catchlines” in the art) at the top of each section, and these don’t appear in the bill versions of statutes — they are later added by editors.
Codifiers and publishers add varying degrees of editorial enhancements to statutes, although many of these enhancements are pretty mechanical. Hyperlinks between statute sections or to cases, or annotations showing where statutes have been cited, are good examples of additions that are more mechanical than editorial.
Finally, in the codification process, editors will occasionally need to resolve conflicts between a recently passed law and the rest of the code section where the law will be placed. For example, some statutory titles have definitions that apply to all of the code sections beneath. When a new law with conflicting definitions is codified in that section, an editor must resolve the conflicts (sometimes requiring commercial publishers to change an enacted statute, if you can believe that).
For most states, this codification process is simply a part of the legislature’s job. They employ a team of editors in an office of codification counsel, and the legislature codifies passed bills into the state’s statutory code.
The codification process is difficult, time consuming, and expensive. Many states (and Congress) employ teams of lawyers and legislative experts who organize and annotate their enacted statutes into codified volumes for publication. However, some states outsource the editorial operations to legal publishers such as LexisNexis and West Publishing Co. (wholly-owned subsidiaries of the Anglo-Dutch publishing giant Reed Elsevier and Canadian mega-conglomerate Thomson Reuters, respectively). And, apparently, publishers require in their contracts that the state grant to the publishers all of the intellectual property in the state codes that result.
Thus we have commercial publishers who claim a copyright in state statutes.
Is a Private Copyright in State Statutes Constitutional / Enforceable?
That briefly explains why a commercial publisher is even in a position to make a claim of intellectual property in statutes. But the idea of state-owned (or private, foreign-owned) copyrights in public law is so counterintuitive, we should examine whether the claim is defensible. Is copyright in state statutes enforceable?
The new crown copyright?
Historians would recognize this kind of claim to copyright in state law. Before the American Revolution, the common law recognized the King’s (or Queen’s) right to copyright in a nation’s laws – the term was called “crown copyright.” Any attempts to copy or quote the law must be authorized by the sovereign. Although crown copyright still exists in the world, the United States for more than 200 years has stood for the rebellious idea that its law is owned by the people, and it may be used freely by them without the consent of the government.
The Founding Fathers considered copyright sufficiently important to address it in the Constitution’s Article I, Section 8 grant of powers to Congress: The Congress shall have the power “to Promote the Progress of Science… by securing for limited Times to Authors… the exclusive Right to their… Writings.”
It was clear enough that copyright was the purview of the people’s representatives in Congress, not of the executive. Congress removed all doubt in enacting 17 U.S.C. § 105, which establishes that works of the federal government (not just statutes, but all works) are not protectable by copyright — the federal government may not restrict the power of the people freely to use government works.
American copyright law is the opposite of crown copyright. Not only does the President not have a copyright in government works, but the entire federal government is barred from asserting copyright protection for government works.
Although the U.S. Code has little to say about copyright claims that states might assert in state codes, early American courts addressed the question several times, thereby establishing the legal framework for evaluating these claims.
Courts: State Codes Belong to the People
Courts have held time and time again that statutes may not be copyrighted, either by states or by private publishers. Some of our oldest copyright cases address issues of legal information; these cases generally held that the law is uncopyrightable. See generally L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989), and cases cited therein.
First, the Constitution limits the protection of copyright to “authors,” and courts have held that, in copyright law, government actors (whether state or federal) cannot be considered the authors of public law.
In Wheaton v. Peters, one of the reporters of early American Supreme Court opinions, Richard Peters, Jr., republished without permission twelve volumes of the reports of his predecessor Henry Wheaton. 33 U.S. (8 Pet.) 591 (1834). In its first opinion on copyright, the Court held that Wheaton could have no copyright in the opinions of the U.S. Supreme Court. 33 U.S. at 668 (“The Court are unanimously of the opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.”)
The Supreme Court in Banks v. Manchester held that a publisher of Ohio Supreme Court opinions could not be liable in copyright, because neither the previous publisher nor the court could be considered an author under the Copyright Act of 1873. 128 U.S. 244 (1888) (“Judges . . . can themselves have no . . . proprietorship, as against the public at large, in the fruits of their judicial labors. . . . [N]o copyright could under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all. . . .”)
This rationale applies with even more force to legislatures, where statutes are written not by individual judges, but by the people’s elected representatives. If copyright law doesn’t consider judges to be authors, it certainly won’t consider a representative legislature to be one.
Second, courts have consistently held that citizens have a Constitutional due process right to have access to the laws that govern them. Because copyrights in state law limit that access, courts have time and again resolved the conflict by holding that state statutes may not be copyrighted. See Davidson v. Wheelock, 27 F. 61 (C.C.D. Minn. 1866) (publisher can’t copyright state statutes, even if state purports to give exclusive publishing rights); Howell v. Miller, 91 F. 129 (6th Cir. 1898) (“no one can obtain the exclusive right to publish the laws of a state”) (Harlan, J., sitting by designation); Nash v. Lathrop, 142 Mass. 29, 6 N.E. 559 (Mass. 1886) (“Every citizen is presumed to know the law thus declared, and it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes or the decisions and opinions of the justices.”)
State legislatures cannot claim copyright to their statutes, because legislatures are not considered authors for the purposes of copyright law, and because the public’s due process rights to access the law serve as a limit on the copyrightability of state statutes.
Courts: Private Publishers Face Limited Copyright for Even Their Own Work
Even where they add material to public codes, publishers’ copyright claims in that work are limited by the Copyright Clause of the Constitution and by copyright provisions in the U.S. Code.
The Copyright Clause requires that works involve some modicum of creativity, so purely mechanical operations such as adding page numbers or numbers in an outline are not copyrightable. Feist Pubs. Inc. v. Rural Telephone Servs. Co., 499 U.S. 340 (1991). The publisher of a treatise about state statutes could claim copyright protection, but a publisher could not, for example, claim copyright in mechanical operations such as adding the next number in sequence to a codification, or collecting cases that cite to a section of the code. See also Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2nd Cir. 1998) (pagination in caselaw reporters is insufficiently creative to merit copyright protection).
Further, when legislatures subsequently sign the original works of publishers into law, the authored works pass into the public domain. See Building Officials & Code Administrators Intl., Inc. v. Code Tech., Inc.., 628 F.2d 730 (1st Cir. 1980) (“BOCA”) (model code authored by private organization entered public domain when adopted by the State of Massachusetts); Veeck v. Southern Bldg. Code Congress Intern., 293 F.3d 791 (5th Cir. 2002) (once the government takes action and passes the model code into law, “there is no reason to believe that state or local laws are copyrightable.”).
Finally, the act of organizing new laws into the outline format of the existing code probably deserves very little copyright protection. Where a legislature amends a particular code section, the publisher’s act of processing the amendment is not creative enough to justify copyright protection under Feist: The process of placing a new law where it belongs in an existing code is often either so straightforward or so arbitrary as not to qualify as a creative act.
How Copyright Law is Applied to State Codes
Based on this discussion of copyright law, we can evaluate the copyright claims that publishers would likely make about state statutes. The following seems crystal clear:
1. Federal statutes (and all federal materials, really) are uncopyrightable, period. Congress has prescribed this by law, and in any event, the U.S. Code is codified by the federal Office of Law Revision Counsel, not by a private publisher.
2. For state statutes, the underlying statutes themselves are almost certainly uncopyrightable. Courts consider them to have been written (constructively) by the people, and due process requires that people have unimpeded access to the laws that govern them.
Although courts haven’t addressed the examples below, the caselaw suggests that private publishers can’t claim much copyright protection in state codes:
Where public employees of states codify, organize, annotate, or write catchlines, is the resulting compilation copyrightable by the state? Courts might hold that the organization of statutes and catchlines meet the minimum constitutional requirements of creativity outlined in Feist. (Annotations, on the other hand, which are effectively lists of citing articles and cases, are uncopyrightable “mere facts”).
However, the same due process claims that protect the public’s right to the underlying statutes also protect their right to the codified statutes, especially if the codified version is the state’s “official” version of the statutes. Moreover, states and state employees are agents of the people, and courts are likely to hold that the work product of states and state employees is owned collectively by the people in the public domain. The official code, when codified by the state, is uncopyrightable.
Where states hire a publishing company to codify their enacted statutes, is the resulting compilation copyrightable? When a state outsources its work to private publishers, the publishers are agents of the state. Under agency law, publishers could have no more claim to copyright than the contracting agent could. So if the state cannot claim copyright in its code, it cannot circumvent the copyright law by contracting the work to a private publisher.
The definitive copyright treatise Nimmer on Copyright adds that contract law is an important part of the analysis: Nimmer points out that that if the state’s publishing contract classifies the publisher’s codification as a “work for hire,” then the state owns the resulting intellectual property on behalf of its citizens. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §§ 5.12 n.29 and 5.13[B]. Where states specify in their contracts that contractors are performing the work of the state, are agents of the state, or are performing a work for hire, courts would be unlikely to enforce copyrights for the agent to which the principal is not entitled.
Could a publisher claim copyright in its organization of a state code? Although copyright law protects the “compilation” of otherwise uncopyrightable elements (the classic example being an anthology of poetry, in which the poems themselves have passed into the public domain, but in which the author can claim copyright for their selection and arrangement) — publishers of state codes have much less discretion in their work than do publishers of other kinds of compilations. Publishers of state codes may not, for example, decide which enacted laws to include in the code. There is no element of selection. And the code has a pre-established organizational structure that the publisher must follow in the codification process. The placement of a passed law in the code section to which it most closely relates may require skill, but it is not creative for purposes of the copyright law.
In short, courts should protect original, creative editorial work, such as articles about the law written by an author. But they should not give private publishers copyright protection where the publishers are performing functions necessary for codifying the official version of the code (such as organizing by topic or writing catchlines). Adoption of this view would protect new creative works while vindicating citizens’ important due process rights in public domain law.
Policy: Should We Root for Publishers?
Commercial legal publishers would likely argue that copyright should protect their creative work. Writing catchlines and organizing codes require expertise, and are expensive. If anyone could copy the completed work, they might argue, publishers would never be able to afford to employ editors, and so would never be able to afford to pursue this line of business. Legal publishing is a for-profit enterprise, and companies should be allowed to recoup their costs, even for state work.
However, when the work is on public law, the analysis must be different. First, there are important policy implications to limiting access to statutes. Copyright is not the only way for publishers to be rewarded for their labors. And if courts choose not to enforce private copyright in public law, publishers could simply charge each state a fair rate to compensate them for their efforts.
Second, if publishers are using state contracts to create proprietary codes, the publishers are effectively receiving corporate welfare, a taxpayer-funded subsidy to create private works. Especially in times of limited budgets, states should be wary of spending taxpayer dollars in this way. Taxes are well spent to create public infrastructure, such as highways (or statutes). But taxpayers would revolt if states financed toll roads owned by foreign transportation conglomerates. Public financing of copyrighted statutes is no different.
How States Can Take Back their Codes
Just this week, the Uniform Law Commission passed the Uniform Electronic Legal Materials Act, designed as a blueprint for state laws that would require preservation and authentication of state statutes published online, while making those statutes permanently available to the public. The Act would have states designate a state employee or agency, not a private publisher, to serve as an “official publisher” of statutes for purposes of authenticating and preserving state codes. To preserve the public’s permanent access under the Act, states should take whatever steps are necessary to restore statutes to the public domain. The Act thus points to the central role that the government, not private publishers, must play in the stewardship of our state statutes.
There are some straightforward ways in which states could clear up any confusion about the copyrightability of their state statutes.
States could hire their own codification counsel, do the work of statutory codification in-house, and make clear that the end result is in the public domain. To the extent that private publishers sell proprietary versions of the code, those publishers may use the public version of the code as a starting point, and copyright their improvements. This approach is recommended as a best practice, but it may not be feasible for all states in difficult economic times.
Separately, to preserve statutes in the public domain, a state could contract with a commercial publisher for private codification services, but specify clearly in its contract that the resulting code is a work made for hire, and, consequently, is in the public domain. In this case, it would make sense for the state to require the publisher to deliver a code free of proprietary commercial enhancements so that the work may pass completely into the public domain. If publishers wish to add proprietary content, they may use the public code as their starting point. But such proprietary content would not be subsidized by tax dollars.
Finally, legislatures can simply enact the codified statutes. Congress does this with the codified U.S. Code, effectively blessing the work of its Office of Law Revision Counsel in codifying statutes. If a legislature merely enacted its code by voice vote, the Code would pass into the public domain.
Commercial publishers perform an important role in codifying state statutes. Their expertise and skill are vital to protecting our rule of law, which is rooted in an informed citizenry. However, statutes are by definition in the public domain, and rightly so. Efforts to own our public law, by American-owned or foreign-owned publishers, violate both our understanding of copyright and our due process rights to access the laws that govern us. When states work together with private publishers to codify their official statutes, neither law nor policy suggests that the publishers may own the resulting codes.
Ed Walters is the CEO of Fastcase. Although nobody at Fastcase believes statutes are copyrightable, the company has no plans to be the test case for this proposition, thank you very much. Views expressed here are his own.