VoxPopuLII

Bentham and the Privacy of the Grave

Jul 082009

I first met Jeremy Bentham as a newly arrived philosophy student walking through the South Cloisters of University College London. Behind the plate glass of a huge mahogany case, I looked in upon a seated life-size wax figure of a man in an 18th Century coat and knee britches, happily wearing a straw hat. Only it was not Bentham’s wax figure; it was his embalmed corpse – his “auto-icon.” Apparently, Bentham’s will left his executor no choice but to have his body stuffed and placed on public display. There he has been ever since.

Bentham famously believed that publicity was the key to truth. His ideal was a Panoptic universe, where all in the world would believe themselves to be constantly observed, listened to, and monitored. Thus all would become good — or at least would behave (which, for Bentham, amounted to the same thing). Bentham felt that claims to privacy were no more real or substantial than claims to natural rights, which he despised as pernicious fictions. Both were harmful beliefs that entrenched privilege and maintained humankind in its misery. Publicity was the key to truth and human happiness.

It is easy to make fun of Bentham’s ideas. But much of what Bentham meant to address in the context of his Panoptic structures we now take for granted. In Bentham’s lifetime, Parliamentary deliberations were confidential. Bentham’s arguments forced them into the sunlight. Legal decisions and statute books were accessible only to lawyers and judges. Bentham’s arguments led to codification of the law, and increasingly accessible legal rules. Bentham was far ahead of his time — the first modern information theorist. The idea that all actions of government would be presumptively available for public review did not become part of U.S. law until the passage of the Freedom of Information Act (FOIA) in 1967. As we speak, it appears the English parliament is only now learning Bentham’s message about publicity.

Bentham’s contemporary William Blackstone celebrated the fact that “private vices” were beyond the jurisdiction of the state. Privacy for him was an organizing principle of civilized society. But Blackstone believed in an all-seeing God to whom we would be accountable even for our private sins and thoughts. Bentham, a thoroughgoing atheist, hated Blackstone and all he stood for. For him the logical truth remained that people who believed themselves to be monitored behaved more responsibly than those who believed themselves to be alone. So Bentham asked himself: in the absence of God, how can a secular society operate without perpetuating Panoptic structures of surveillance? Foucault's Panopticon When Michael Foucault argued that Bentham’s Panoptic structures had become essential to the functioning of a modern secular state, he did not claim originality for the insight.

But why do our intuitions revolt? What can our brains say to explain this revulsion? What is so important about privacy? Judge Posner has pointed out that when people are given a right to privacy, they use it to conceal discrediting information about themselves from others – and consequently mislead and defraud them. In a world increasingly characterized by exchanges of information, should we not all just abandon the attempt to maintain privacy, and embrace the Panopticon? We are, of course, all familiar with the dark side of the Panopticon – the fictional surveillance state of George Orwell’s 1984, or the actual surveillance states in Eastern Europe in the second half of the last century. But as Bentham knew, and his modern disciple David Brin has explained at greater length, the Orwellian nightmare state is impossible when the Panopticon works both ways – when the government itself is watched – when the surveillor knows himself to be surveilled. Still, our intuitions rebel, but we are unable to respond to Bentham’s utilitarian logic.

So let us return again to the South Cloisters of University College and the question we began with: what could have possessed Bentham to do what he did with his last remains? The answer seems to be compelled by the same bloodless logic the man applied in all other aspects of his life. Bentham, the great apostle of publicity, rejected even the privacy of the grave – he remains the eternal observer, continuing his surveillance of the living from his perch among the dead.

A Law Librarian Looks at Legal Informatics Scholarship

Digital law libraries, Law librarians and legal informatics, Legal informatics 2 Responses »

Jun 152009

Recently I, like many law librarians (including Dean Richard Danner, James Donovan, and the panelists at the University of South Carolina School of Law’s colloquium on “The Law Librarian’s Role in the Scholarly Enterprise” [scroll down & click on “Part 9: Roundtable”]), began to devote more thought to disintermediation in legal information services. One way that law librarians can adapt to disintermediation is by learning more about the study of legal information systems, that is, legal informatics. When I began looking closely at legal informatics scholarship last fall, I was dismayed at not being able to locate any single resource that aggregated all of the major scholarly information resources in the field. As a result, I decided to build one; it’s called Legal Information Systems & Legal Informatics Resources. To provide current information, the site has an accompanying blog , the Legal Informatics Blog, and a Twitter feed. Building these sites has allowed me to cast a novice’s eye on the field of legal informatics.

Eye

Here is what I’ve glimpsed in the past few months:

I. Surveying the Sources

My exploration of legal informatics has focused initially on information resources. A relatively circumscribed set of scholarly journals, other article sources, preprint services, indexing & abstracting services, blogs, and listservs regularly report research results in legal informatics. A small set of subject headings will retrieve most monographs and dissertations in the field. Accordingly, aggregating access to these resources has been relatively easy, and automating discovery and delivery of many of these sources seems feasible sooner rather than later.

Conferences are trickier. The number of conferences at which legal informatics issues are addressed is substantial, for several reasons: a large number of researchers from industry as well as academia (see, e.g., the lists of individuals compiled by Dr. Adam Wyner and the organizers of the DEON deontic logic conferences, and this list of departments & institutes), energetically engaged in applied as well as theoretical research, are producing a sizeable output; many of those researchers work in multiple fields; and the pace of technological change is accelerating the research and communication processes. Several Websites, such as those of the International Association for Artificial Intelligence and Law (IAAIL) and the DEON deontic logic conferences, monitor these meetings, however. Access to proceedings is available from several sources, including ACM’s Portal service, the other major information science indexing services, OCLC WorldCat, and the Legal Information Systems site. As a result, access to most legal informatics conference information and proceedings can be streamlined and hopefully largely automated before too long.

Projects have proven even trickier. Much legal informatics research takes the form of grant-funded projects, of which a great number, particularly in Europe, have been undertaken during the past decade. Political integration in Europe and democratization in many regions encouraged certain governments during the past two decades to fund applied research on legal information systems. Identifying and linking to all of these legal informatics projects seems important for enabling access to legal informatics scholarship. Such a process is quite labor intensive, however, because of the great number of such projects, the lack of a comprehensive list of them, and the many languages in which project documentation is written. A long-term goal of the Legal Information Systems site is to build a database of as many of these projects as can be identified, with links to project Websites, deliverables, and publications.

Since standards and protocols, such as those respecting descriptive metadata and knowledge representation, and data sets constitute additional key resources for legal informatics research, links to many of them have been collected on the Legal Information Systems site. Because many researchers in the field focus on a particular research topic or category of legal information, aggregations of resources on major topics in the field, such as e-rulemaking, evidence, and information behavior, to which the Legal Information Systems site has dedicated pages, and argumentation, to which Dr. Adam Wyner’s blog devotes several pages, may yield efficiencies for researchers. In addition, collections of resources on applied topics such as citation standards, computer-assisted legal research (CALR) services, court technology, the Free Access to Law movement (discussed here by Ginevra Peruginelli & Enrico Francesconi of ITTIG-CNR, with links to resources here), institutional repositories, instructional technology, law practice technology, and open access may be of use to researchers and practitioners alike.

II. Detecting a Communications Gap

From a preliminary scan of the field of legal informatics I’ve learned that legal informaticists and law librarians do not appear to be communicating to any significant extent. For example, law librarians seem to play little or no role at legal informatics conferences and are rarely published in legal informatics journals. (Sarah Rhodes & Dana Neacsu’s recent paper seems an exception.) This seems particularly odd, given that law libraries are developing some of today’s most innovative digital legal information systems, such as the Chesapeake Project Legal Information Archive (a project of the Georgetown University Law Library, the Maryland State Law Library, the Virginia State Law Library, and the Legal Information Preservation Alliance), the Law Library of Congress’s Global Legal Information Network (GLIN), the Harvard Law School Library’s Digital Collections, the digital law libraries created by the Rutgers Camden and Rutgers Newark law libraries, and the USC Law Library’s English Medieval Legal Documents Wiki. Law library scholarship — although it often addresses legal informatics topics such as legal citation (as in studies that reveal information resources utilized by courts), legal information behavior (as in the work of Dean Joan Howland & Nancy Lewis, Dr. Yolanda Jones, and Judith Lihosit ), and the functioning or design of legal information systems such as computer assisted legal research (CALR) services (as in recent studies by Julie Jones, John Doyle, and Dean Mason) — rather infrequently refers to legal informatics scholarship. That is, two communities of experts respecting the same subject — legal information systems — seem for the most part to be talking past each other.

Communication failure

Yet information sharing between law librarians and legal informaticists would substantially benefit both groups. Law librarians would gain valuable insights into the functioning of the legal information systems they use every day and the likely direction of the legal information industry, as may be gleaned from recent monographs collecting conference papers in the field as well as from the program of the 2009 International Conference on Artificial Intelligence and Law (ICAIL 2009). Those works show that the primary topics of recent legal informatics scholarship include argumentation and deontic logic (as discussed, for example, in recent dissertations by Dr. Adam Wyner & Dr. Régis Riveret); agent/multi-agent systems; decision support systems; document modeling; several natural language processing issues including multi-language systems, text mining including automated classification and indexing, summarization, segmentation, and information retrieval, as, for example, discussed in proceedings of the TREC Legal Track, and notably in the context of electronic discovery; other applied research topics, particularly concerning e-rulemaking, online dispute resolution, negotiation systems, digital rights management, electronic commerce and contracts, and evidence; and the use of XML, ontologies, and the development of the Semantic Web respecting legal information.

By cooperating with law librarians, legal informaticists for their part would gain access to expert users of legal information systems, quality input respecting the contexts of legal information use (ranging from the information lifecycle to the information behavior of lawyers), and ideas for further research.

Here are some specific suggestions respecting how law librarians could make meaningful contributions to legal informatics research. First, law librarians could continue to perform legal information behavior research, building on the important recent activity in this area. Second, law librarians who are developing innovative legal information systems could present papers on those systems at legal informatics conferences and write articles about those systems for legal informatics journals.

Third, as expert users of legal information systems and close observers of lawyers, judges, law students, and lay users of legal information, law librarians could generate legal informatics research questions based on their experience and observations. For example, law librarians could recommend research on such little-studied but important legal information systems as conflict of interest control systems and bankruptcy claims agents’ Websites, or on the application of information science and computer science concepts to legal information systems errors, such as those arising from faulty legal drafting practices and overly complex statutory and regulatory schemes.

Fourth, law librarians could provide legal informaticists with expert practitioner and policy perspectives on issues that law librarians have prioritized as a profession, such as authentication, digital preservation, metadata content and management, and user interface design. Fifth, law librarians could furnish legal informatics researchers with input respecting system capabilities from the vantage of an “expert user,” as Dr. Stephann Makri recently did by including law librarians in his study of lawyers’ information behavior.

Sixth, law librarians engaged in developing innovative digital legal information systems could partner with legal informaticists to study those systems. Seventh, law librarians who are also lawyers could contribute their knowledge of substantive and procedural law to legal informatics research projects, particularly where not all of the legal informaticists involved have legal training.

Finally, law librarians could draw on their in-depth knowledge of legal information systems and users to partner with legal informaticists on the design of research studies. In particular, those law librarians with training in social science research methods could encourage legal informaticists to employ those methods in their studies of legal information systems, which might benefit from increased use of multiple methodologies.

Handshake

III. Bright Prospects

Greater cooperation between legal informaticists and law librarians would benefit both communities. The Legal Information Systems site will be developed with an eye toward demonstrating and fostering that cooperation.

[NOTE: This post was updated on 22 August 2011 to reflect new URLs.]

Robert Richards edits Legal Information Systems & Legal Informatics Resources and its accompanying blog , the Legal Informatics Blog, and Twitter feed.

VoxPopuLII is edited by Judith Pratt.

Search Result Lists are Dead To Me

search, visualization 7 Responses »

Jun 012009

Most legal publishers, both free and fee, are primarily concerned with content. Regardless of whether they are academic or corporate entities providing electronic access to monographs, the free providers of the world giving primary source access, Westlaw or Lexis (hereinafter Wexis) providing access to both primary and secondary sources, or any other legal information deliverer, content has ruled the day. The focus has remained on the information in the database. The content. The words themselves.

If trends remain stable, primary source content, at least among politically stable jurisdictions, will be a given. Everyone will have equal access to the laws, regulations, and court decisions of their country online. In the U.S., new free open source access points are emerging every day. Here, the public currently has their choice of LII, Justia, Public Library of Law, AltLaw, FindLaw, PreCYdent, and most recently, OpenJurist, to discover the law. And hopefully, that content will be official and authentic.

The issue then refocuses to secondary sources and user interfaces. These will be where the battle lines will be drawn among legal publishers. Both assist in making meaning out of primary sources, though in fundamentally different ways. Secondary sources explain, analyze, and provide commentary on the law. They can be highly academic and esoteric, or provide nuts and bolts instructions and guidance. They also include finding aids to primary sources, like annotations to statutes, indexes, headnotes, citator services, and the like. While access to government-produced primary sources is a right, access to secondary sources is not, although for lay persons and lawyers alike, primary sources alone are typically insufficient to fully understand the law. I leave the not insignificant issue secondary sources for another day, and focus here on content access and the user interface.

“The eye is the best way for the brain to understand the world around us.”

— Quote reported identically by multiple users on Twitter from a recent talk by Dr. Ben Shneiderman at the #nycupa.

Despite the advances made in adding legal online content, equal attention has not been given to how users may optimally access that content to fulfill their information-seeking needs. We continue to use the same basic Boolean search parameters that we have used for nearly fifty years. We continue to presume that sorting through search result lists is the best way to find information. We continue to presume that research is simply a matter of finding the right keywords and plugging them into a search box. We presume wrong. Even though keyword searching is beloved by many because it provides the illusion of working, it consistently fails.

There is, in fact, another method of finding information that is inherently contextual, and that educates the user contemporaneously with the discovery process. This method is called browsing. Wexis, through their user interfaces, encourage searching over browsing because they are profit centers whose essential product is the search. It is commonly assumed that their product is the database, i.e. the content, because they negotiate access to specific databases with their customers. And while some databases are worth more than others, they charge by the number of searches, not by the number of documents retrieved, not by the amount of content extracted. (This describes the transactional costs, which are probably most frequently employed. Of course, the per search charge varies by database. Users may alternately choose to be charged by time instead. )

Therefore, their profits are maximized by creating a search product that is not too good and not too bad. They are, in fact, rewarded for their search mediocrity. If it is too good, users will find what they need too quickly, decreasing the number of searches and amount of time spent researching, and profits will decline. If it is too bad, users will get frustrated, complain, and, perhaps eventually, try a different vendor. Though with our current two-party system, there is little real choice for legal professionals who have sophisticated legal research needs not satisfied by the open access options available. (And then there is the distasteful possibility that law firms themselves want to keep legal research costs inflated to serve as their own profit centers.)

As such, Wexis will not be optimally motivated to improve their user interfaces and enhance the information-seeking process to increase efficiency for their customers. This leaves the door wide open for others in the online legal information ecology to innovate and force needed change, create a better product themselves, and apply pressure on the Ferraris and Lamborghinis of the legal world to do the same.

“A picture is worth a thousand words. An interface is worth a thousand pictures.”

— Quote reported identically by multiple users on Twitter from a recent talk by Dr. Ben Shneiderman at the #nycupa.

The time is ripe to create a new information discovery paradigm for legal materials based on semantics. Outside the legal world, advances are being made in more contextual information discovery platforms. Instead of a user issuing keywords and a computer server spitting back results, adjusting input via trial and error ad infinitum, graphic interfaces allow the user to comprehend and adjust their conception and results visually with related parameters. These interfaces encourage an environment where research is more like a conversation between the researcher and the data, rather than dueling monologues.

Lee Rainie, Director of the Pew Internet & American Life Project, recently discussed the emerging information literacies relevant to the evolving online ecology. These literacies should inform how search engines adapt themselves to human needs. Their application in the legal world is a natural fit. Four literacies most applicable to legal research include:

• Graphic Literacy. People think visually and process data better with visual representations of information. Translation: make database interfaces and search results graphic.

• Navigation Literacy. People have to maneuver online information in a disorganized nonlinear text screen. This creates comprehension and memory problems. We want our lawyers and legal researchers to have good comprehension and memory when serving clients.

• Skepticism Literacy. Normally referring to basic critical thinking skills, this should apply to critically assessing user interfaces, particularly in a profit-seeking environment like Wexis where the interface can affect how and what you search, as well as your wallet.

• Context Literacy. People need to see connections both between and within information in a hyperlinked environment. Simply providing hyperlinks is good, but graphically visualizing the connections is better.

Some subscription databases and internet search features serve these literacies well. Many of these are in early stages and not necessarily fit for legal research, but can give an idea of possibilities. I’ll discuss a few, and consider how these might apply in the legal context.

Google has recently re-released their wonder wheel which helps users figure out what they are looking for. This is a frequent stumbling block for novices to legal research, and even for seasoned attorneys faced with a new subject. The researcher simply doesn’t know enough to know what exactly to look for. A tool like this helps the researcher find terms and concepts that they might not have otherwise considered (of course, secondary sources are excellent for this as well). Pictured here, the small faded hub at the bottom was for my original search of “legal research.” I then clicked on the “legal research methodology” spoke which expanded above the first wheel with different spokes and further ideas.

A common problem with keyword searching is finding the right words in the correct combination that exemplify a concept and are not over or under inclusive. Wexis offers thesauri which can be helpful, though they require actual searching to test. Some free sites, like PreCYdent, have this feature as well. They work to greater and lesser degrees. A recent search for “Title VII sex retaliation” resulted in a suggestion to also search for Title III, which is clearly not my intended subject. And while helpful, thesauri and other word and concept suggestors are still tied to the search paradigm which we want to move away from.

Factiva Factiva is a subscription database provider supplying news and business information. It provides a graphical “discovery pane” with “intelligent indexing” that clusters results by subjects related to search terms. This allows the user to select the most relevant results to their purpose. It also features word clouds (not pictured here) with text size indicating prominence of these terms in search results. Date graphs indicate when search results were published, so the user can visually assess when a topic is most frequently covered in the news.

Subject-based indexing is an excellent contextual tool to guide the user to relevant content without searching. Legal context literacy is supported by indexes to subject-based compilations, such as statutes and regulations. It’s great to have the full text of statutes available for free online, but some kind of subject-based entry port to that collection is needed to render it maximally useful. For databases like these, given the non-natural language used by legislators and lobbyists alike in constructing laws, keyword searching is frequently an inefficient and frustrating discovery method. Currently, Westlaw is the only legal information provider that provides online subject indexing to state and federal codes (though they like to hide that fact in their interface because their product is the search, not the content).

Weighting words, graphically represented by the size of the term, is another method users can employ to improve their results with keyword searching. Factiva uses weighted word clouds to indicate the frequency of terms in search results. SearchCloud allows users to manually weight search terms to indicate their importance within the search and adjusts results accordingly. For example, a researcher may need to find documents with five different words in them, but three are essential in symbolizing the idea sought, and the other two are needed, but not as important. As pictured here, I searched for copyright legal research guides, giving most importance to the words copyright and guide, and less to the words legal and research to ensure that I retrieved guides on copyright and not just any list of research guides that might mention copyright, and that it was in fact a legal research guide and not some other document that just mentions the word guide. Results were significantly more relevant here than the same un-weighted search on Google.

Weighted words can easily be employed in legal research. For example, with case law search results and citator reports, instead of a list of cases and other documents arranged either by date, jurisdiction, or algorithmic relevancy, citator information can be graphically indicated. Cases that are cited the most would appear near the top of the list in the largest fonts. Cases cited the least would appear in a smaller font at the bottom of the list. It adds immediate meaning-making visual cues to an otherwise non-contextual list, letting the researcher know at a glance which are the most important cases.

It would be a boon to researchers if the connection between results was made apparent graphically. KartOO attempts this with their search engine which links various web pages in results with associated terms and similar pages. Mousing over links allows the user a preliminary peek at the search result to further determine its relevancy. The benefits to lawyers for this type of graphic display of search results for cases could be enormous. To be able to tell at a glance how a body of law is interconnected would give immeasurable context and meaning to what would otherwise be a simple list, each result visually disconnected from the other.

Some type of contextual map like the wonder wheel or a concept chart like KartOO, potentially combined with weighted words, could be employed that would illustrate the interconnectedness between all the cites to the case at issue, or to search results of cases. The biggest, most precedential, most frequently inter-cited cases would live near the center of the web with large hubs, less important cases would live at the peripheries. Most cases are never cited and are jurisprudentially less significant. This should be made clear through visual cues. Westlaw just launched something similar for patents.

These are just a few examples, based on developing technology, of how the legal search paradigm might develop. The beauty of our legal corpus is its fundamental interconnectedness. The web of cites within and between documents gives semantic developers a preconstructed map of relevancy and importance so that they need only create a way to symbolize that pattern graphically.

“Semantics rule, keywords drool.”

— Quote at twitter.com/scagliarini. See also http://www.expertsystem.net/blog/?p=68.

The future of legal information discovery interfaces combines searching and browsing, text and context, graphics and metadata. Because content without meaning thwarts understanding. Laws without context do not serve democracy. We need “interactive discovery.” Which is why search result lists are dead to me.

Julie Jones, formerly a librarian at the Cornell Law School, is the “rising” Associate Director for Library Services at the University of Connecticut Law School, beginning later this month. She received her J.D. from Northwestern University School of Law, M.L.I.S. from Dominican University, and B.A. from U.C. Santa Barbara.

VoxPopuLII is edited by Judith Pratt

Authentication of Digital Repositories

authentication, digital, digital libraries, repositories 4 Responses »

May 142009

When I first started off in the field of Internet publishing of legal materials, I did, briefly consider the topic of authenticity, and its importance to the end user. My conclusion back then rested on the simple consideration that since I was a librarian and was acting under the aegis of a university, I had no problem. In fact, my initial vision of the future of legal publishing was that as academic libraries strove to gain ownership and control over the content they needed in electronic form, they would naturally begin to harvest and preserve electronic documents. Authentication would be a natural product of everyone having a copy from a trusted source, because the only ax we have to grind is serving accurate information. Ubiquitous ownership from trustworthy sources.

Of course, I was new to the profession then, and very idealistic. I grossly underestimated the degree to which universities, and the librarians that serve them, would be willing to place their futures in the hands of a very small number of commercial vendors, who keep a very tight grip on their information. This gradually reduces the librarian to the role of local administrator of other people’s information.

So much for us librarians. Even without us, however, end users still need trustworthy information. We are confronted with a new set of choices. On the one hand, there is expensive access to the collection of a large vendor, who has earned the trust of their users through both long tradition and by their sheer power over the market. On the other, there are court and government-based sources, which generally make efforts to avoid holding themselves out as either official or as reliably authenticated sources, and a number of smaller enterprises, which offer lower cost or free access to materials that they harvest, link to, or generate from print themselves.

For the large publishers, the issue of authentication is not a serious issue. Their well earned reputations for reliability are not seriously questioned by the market that buys their product. And, by all accounts, their editorial staffs ensure this continues.

So, what about everyone else? In the instance of publishing court decisions, for example, Justia, Cornell’s LII, etc., collect their documents from the same “unofficial” court sources as the large publishers, but the perceived trustworthiness is not necessarily the same with some user communities. This is understandable, and, to a great extent, can only be addressed through the passing of time. The law is a conservative community when it comes to its information.

Along with this, I think it also important to realize that this lack of trust has another, deeper component to it. I see signs of it when librarians and others insist on the importance of “official” and “authentic” information, while at the same time putting complete and unquestioned trust in the unofficial and unauthenticated offerings of traditional publishers.
Of course, a great deal of this has to do with the already mentioned reputations of these publishers. But I think there is also a sense in which there has been a comfort in the role of publishers as gatekeepers that makes it easy to rely on their offerings, and which is missing from information that comes freely on the Internet.

In the context of scholarly journals, this has been discussed explicitly. In that case, the role of gatekeeper is easily defined in terms of the editorial boards that vet all submissions. In the case of things like court decisions, however, the role of the gatekeeper is not so clear, but the desire to have one seems to remain. The result is discussions about the possibility of errors and purposeful alterations in free Internet law sources that often seem odd and strangely overblown. They seem that way to us publishers, that is.

So, for me, the crux of any debate about authentication comes down to this disconnect between the perceptions and needs of the professional and librarian communities, and what most Internet law publishers do to produce accurate information for the public.

As I said earlier, time will play a role in this. The truly reliable will prove themselves to be such, and will survive. The extent to which the Cornell LII is already considered an authoritative source for the U.S. Supreme Court is good evidence of this. At the same time, there is much to be gained from taking some fairly easy and reasonable measures to demonstrate the accuracy of the documents being made available.

The utility of this goes beyond just building trust. The kind of information generated in authenticating a document is also important in the context of creating and maintaining durable electronic archives. As such, we should all look to implement these practices.

The first element of an authentication system is both obvious and easy to overlook: disclosure. An explanation of how a publisher obtains the material on offer, and how that material is handled should be documented and available to prospective users. For the public, this explanation needs to be on a page on the website. It’s a perfect candidate for inclusion on a FAQ page. (Yes, even if no one has asked. I mean really, how many people really count questions received before creating their FAQs?). For the archive, it is essential that this information also be embedded in the document metadata. A simple Dublin Core source tag is a start, but something along the lines of the TEI <sourceDesc> and <revisionDesc> tags are essential here (See http://www.tei-c.org/release/doc/tei-p5-doc/html/HD.html) .

An explanation of the source of a document will show the user a chain of custody leading back to an original source. The next step is to do something to make that chain of custody verifiable.

It is at this point where things can either stay reasonable, or can spin off toward some expensive extremes, so let’s be clear about the ground rules. We concerned with public-domain documents, which are not going to be sold (so no money transfer is involved), and where no confidential information is being passed. For these reasons, site encryption and SSL certificates are overkill. We aren’t concerned with the <i>transmission</i> of the documents, only their preparation and maintenance. The need is for document-level verification. For that, the easy and clear answer is in a digital signature.
At the Government Printing Office (GPO), the PDF version of new legislative documents are being verified with a digital signature provided by GeoTrust CA and handled by Adobe, Inc. These are wonderful, and provide a high level of reliability. For the initial provider, they make a certain amount of sense.

However, I question the need for an outside provider to certify the authenticity of a document that is being provided directly from GPO. Note what the certification really amounts to: an MD5 hash that has been verified and “certified” by GeoTrust. It’s nice because anyone can click on the GPO logo and see the certificate contents. The certificate itself, however, doesn’t do anything more than that. The important thing is the MD5 sum upon which the certificate relies.
In addition, the certificate is invalid as soon as any alterations whatsoever are made to the document. Again, this makes some sense, but does not address the need and utility to add value to the original document, such as format conversion to HTML, XML or other useful formats, insertion of hypertext links, addition of significant metadata, etc.

The answer to this problem is to retain the MD5 sum, while dropping the certificate. The retained MD5 sum can still be used to demonstrate a chain of custody. For example, here at Rutgers–Camden, we collect New Jersey Appeals decisions provided to us by the courts. As they are downloaded from the court’s server in MS Word format, we have started generating an MD5 sum of this original file. The document is converted to HTML with embedded metadata and hypertext links, but the MD5 sum of the original is included in the metadata. It can be compared to the original Word document on the court’s server to verify that what we got was exactly what they provided.

The next step is to generate an additional MD5 sum of the HTML file that we generated from the original. Of course, this can’t be embedded in the file, but it is retained in the database that has a copy of all the document metadata, and can be queried anytime needed. That, combined with an explanation of the revisions performed on the document completes the chain of custody. As embedded in our documents, the revision notes are put in as an HTML-ized variation on the TEI revision description, and look like this:
<META NAME=”revisionDate” CONTENT=”Wed May 6 17:05:56 EDT 2009″>
<META NAME=”revisionDesc” CONTENT=”Downloaded from NJAOC as MS Word document, converted to HTML with wvHtml. Citations converted to hypertext links.”>
<META NAME=”orig_md5” CONTENT=”8cc57f9e06513fdd14534a2d54a91737”>

Another possible method for doing this sort of thing would be the strategy suggested by Thomas Bruce and the Cornell LII. Instead of generating an original and subsequent MD5 sum, one might generate a single digital signature of the document’s text stream, stripped of all formatting, tagging, and graphics. The result should be an MD5 sum that would be the same for both the original document, and the processed document, no matter what the subsequent format alterations or other legitimate value-added tagging that were done.

The attraction of a single digital signature that would identify any accurate copy of a document is obvious, and may ultimately be the way to proceed. In order for it to work, however, things like minor inconsistencies in the treatment of “insignificant” whitespace (See http://www.oracle.com/technology/pub/articles/wang-whitespace.html for an explanation), and the treatment of other odd things (like macro generated dates, etc. in MS Word), would have to be carefully accounted for and consistently treated.
Finally, I don’t think any discussion of authenticity and reliability of legal information on the Internet should leave out a point I hinted at earlier in this article. In the long run, information does not, and will not survive without widespread distribution. In this time of cheap disk space and fast Internet connections, we have the unprecedented opportunity to preserve information through widespread distribution. Shared and mirrored repositories among numbers of educational and other institutions would be a force for enormous good. Imagine an institution recovering from the catastrophic loss of their collections by merely re-downloading from any of hundreds of sister institutions. Such a thing is possible now.

In such an environment, with many sources and repositories easily accessible, all of which are in the business only of maintaining accurate information, reliable data would tend to become the market norm. You simply could not maintain a credible repository that contained errors, either intentional or accidental, in a world where there are many accurate repositories openly available.

Widespread distribution, along with things like the above suggestions, are the keys to a reliable and durable information infrastructure. Each of us who would publish and maintain a digital repository needs to take steps to insure that their information is verifiably authentic. And then, we need to hope that sooner or later, we will be joined by others.

There. I am still a naive optimist.

John Joergensen is the digital services librarian at Rutgers University
School of Law – Camden. He publishes a wide range of New Jersey primary
source materials, and is digitizing the libraries collection of
congressional documents. These are available at
http://lawlibrary.rutgers.edu.

VoxPopuLII is edited by Judith Pratt. Editor in Chief is Rob Richards.

Laws in Translation

comparative, legal language, transnational 3 Responses »

May 062009

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

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

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

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

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

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

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

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

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

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

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

Vox PopulLII is edited by Judith Pratt

Legal Information, Public and Private

commercial systems, liis 3 Responses »

Apr 162009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VoxPopuLII is edited by Judith Pratt

The Florentine Debate on Free Access to Law

European Union, liis, transnational 2 Responses »

Apr 092009

On the 30th and 31st of October 2008, the 9th International Conference on “Law via the Internet”met in Florence, Italy. The Conference was organized by the Institute of Legal Information Theory and Techniques of the Italian National Research Council (ITTIG-CNR), acting as a member of the Legal Information Institutes network (LIIs). About 300 participants, from 39 countries and five continents, attended the conference. The conference had previously been held in Montreal, Sydney, Paris, and Vanuatu.

The conference was a special event for ITTIG, which is one of the institutions where legal informatics started in Europe, and which has supported free access to law without interruption since its origin. It was a challenge and privilege for ITTIG to host experts from all over the world as they discussed crucial emerging problems related to new technologies and law.

Despite having dedicated special sessions to wine tasting in the nearby hills (!), the Conference mainly focused on digital legal information, analyzing it in the light of the idea of freedom of access to legal information, and discussing the technological progress that is shaping such access. Within this interaction of technological progress and law, free access to information is only the first step — but it is a fundamental one.
Increased use of digital information in the field of law has played an important role in developing methodologies for both data creation and access. Participants at the conference agreed that complete, reliable legal data is essential for access to law, and that free access to law is a fundamental right, enabling citizens to exercise their rights in a conscious and effective way. In this context, the use of new technologies becomes an essential tool of democracy for the citizens of an e-society.

The contributions of legal experts from all over the world reflected this crucial need for free access to law. Conference participants analysed both barriers to free access, and the techniques that might overcome those barriers. Session topics included:

In general, discussions at the conference covered four main points. The first is that official free access to law is not enough. Full free access requires a range of different providers and competitive republishing by third parties, which in turn requires an anti-monopoly policy on the part of the creator of legal information. Each provider will offer different types of services, tailored to various public needs. This means that institutions providing legal data sources have a public duty to offer a copy of their output — their judgments and legislation in the most authoritative form — to anyone who wishes to publish it, whether that publication is for free or for fee.

Second, countries must find a balance between the potential for commercial exploitation of information and the needs of the public. This is particularly relevant to open access to publicly funded research.

The third point concerns effective access to, and re-usability of, legal information. Effective access requires that most governments promote the use of technologies that improve access to law, abandoning past approaches such as technical restrictions on the reuse of legal information. It is important that governments not only allow, but also help others to reproduce and re-use their legal materials, continually removing any impediments to re-publication.

Finally, international cooperation is essential to providing free access to law. One week before the Florence event, the LII community participated in a meeting of experts organised by the Hague Conference on Private International Law’s Permanent Bureau; a meeting entitled “Global Co-operation on the Provision of On-line Legal Information.” Among other things, participants discussed how free, on-line resources can contribute to resolving trans-border disputes. At this meeting, a general consensus was reached on the need for countries to preserve their legal materials in order to make them available. The consensus was that governments should:

give access to historical legal material
provide translations in other languages
develop multi-lingual access functionalities
use open standards and metadata for primary materials

All these points were confirmed at the Florence Conference.

The key issue that emerged from the Conference is that the marketplace has changed and we need to find new models to distribute legal information, as well as create equal market opportunities for legal providers. In this context, legal information is considered to be an absolute public good on which everyone should be free to build.

Many speakers at the Conference also tackled multilingualism in the law domain, highlighting the need for semantic tools, such as lexicons and ontologies, that will enhance uniformity of legal language without losing national traditions. The challenge to legal information systems worldwide lies in providing transparent access to the multilingual information contained in distributed archives and, in particular, allowing users express requests in their preferred language and to obtain meaningful results in that language. Cross-language information retrieval (CLIR) systems can greatly contribute to open access to law, facilitating discovery and interpretation of legal information across different languages and legal orders, thus enabling people to share legal knowledge in a world that is becoming more interconnected every day.

From the technical point of view, the Conference underlined the paramount importance of adopting open standards. Improving the quality of access to legal information requires interoperability among legal information systems across national boundaries. A common, open standard used to identify sources of law on the international level is an essential prerequisite for interoperability .

In order to reach this goal, countries need to adopt a unique identifier for legal information materials. Interest groups within several countries have already expressed their intention to adopt a shared solution based on URI (Universal Resource Identifier) techniques. Especially among European Union Member States, the need for a unique identifier, based on open standards and providing advanced modalities of document hyper-linking, has been expressed in several conferences by representatives of the Office for Official Publications of the European Communities (OPOCE).

Similar concerns about promoting interoperability among national and European information systems have been aired by international groups. The Permanent Bureau of the Hague Conference on Private International Law is considering a resolution that would encourage member states to “adopt neutral methods of citation of their legal materials, including methods that are medium-neutral, provider-neutral and internationally consistent.” ITTIG is particularly involved in this issue, which is currently running in parellel with the pan-European Metalex/CEN initiative to define standards for sources of European law.

The wide discussions raised during the Conference are collected in a volume of Proceedings published in April 2009 by European Press Academic Publishing – EPAP.

— E. Francesconi ,G. Peruginelli

Ginevra Peruginelli

Ginevra has a degree in law from the University of Florence, a MA/MSc Diploma in Information Science awarded by the University of Northumbria, Newcastle, UK and a Ph.D. in Telematics and Information Society from the University of Florence. Currently she is a researcher at the Institute of Legal Theory and Techniques of the Italian National Research Council (ITTIG-CNR). In 2003, she was admitted to Bar of the Court of Florence as a lawyer. She carries out her research activities in various sectors, such as standards to represent data and metadata in the legal environment; law and legal language documentation; and open access for law.

Enrico Francesconi

Enrico is a researcher at ITTIG-CNR. His main activities include knowledge representation and ontology learning, legal standards, artificial intelligence techniques for legal document classification and knowledge extraction. He is a member of the Italian and European working groups establishing XML and URI standards for legislation. He has been involved in various projects within the framework programs of DG Information Society & Media of the European Commission and for the Office for Official Publications of the European Communities.

VoxPopuLII is edited by Judith Pratt

Law, Culture and Beaches

comparative, legal language, liis, vanuatu 1 Response »

Mar 182009

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

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

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

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

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

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

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

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

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

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

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

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

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

VoxPopuLII is edited by Judith Pratt.

What is a Legal Information Institute?

africa, liis 6 Responses »

Mar 012009

[Ed. – Kerry Anderson has graciously served as our guinea-pig for this first episode of VoxPopuLII, and we thank her for her patience as we’ve debugged our process. Full information about VoxPop can be found here, and in the series announcement here]

At its most basic level, a legal information institute obtains primary legal information from the public bodies responsible for producing that information, and makes it available online for free, full and anonymous access.

But what is a legal information institute when the courts from which judgments must be acquired are not themselves always sure where the final copy of the judgment is – either in electronic or in hard copy format?

What is a legal information institute when the courts from which judgments are sourced do not take the responsibility for ensuring that private information, including the names of minors and victims in sexual abuse cases, are removed from the judgments?

What is a legal information institute when the legislation of a country is available only through the purchase of costly subscriptions from a commercial publisher contracted by the Parliament of that country?

What is a legal information institute when the last Law Reports available in a country date from more than 20 years previously? Or not at all?

What is a Legal Information Institute when the transcripts of judgments are refused for publication – even by the courts themselves – by the company contracted to provide the transcription service on some very shady grounds of copyright?

All of the above describe situations SAFLII (the Southern African Legal Information Institute) has encountered in its dealings with jurisdictions across Southern and Eastern Africa. We have found ourselves assuming a responsibility for public access to legal information in a way that often places us in a quagmire of jurisprudence and legislative complexity that is at odds with the more traditional interpretation of a legal information institute. In one jurisdiction a minor is someone under 21, in another, under 18. What constitutes private information differs from one jurisdiction to another. Tax legislation requiring privacy is applied to companies in different ways according to the jurisdiction. Courts in Southern and Eastern Africa are notoriously under-funde d: they lack computers, resources, and skills for tracking all of this information. Were SAFLII to rely on these courts to amend materials found to be problematic, our cupboard would be bare indeed.

Even more concerning is the role we have found ourselves assuming of the primary – and only – publisher of legal materials for some countries. Zimbabwe has not been able to publish its Law Reports since 2003 owing to the devastating collapse of infrastructure resulting from the political situation. Swaziland last published Law Reports in the 1980s. Many other countries have out-of-date Law Reports with no resources to continue the Law Reporting function. Others have written more eloquently than I on the necessity of having contextual law, particularly in common law jurisdictions. The point is singular and self-evident: how can the laws of a country be known if the laws of the country are not available?

In finding inventive and creative strategies for dealing with these situations, we have traveled quite far down the rabbit hole. We have conducted scanning projects in some courts to digitize a bulk of material that would otherwise not be available (unless you happen to be visiting Bloemfontein, Maseru or Kampala). We regularly undertake audits of the material on our website and anonymize material in accordance with our published policy – this policy having been developed with the assistance of judges and legal practitioners from the region. We have integrated our workflows with those of some of the courts in our jurisdictions. We have supported, and continue to support, the development of legal reporting structures – sometimes with the public bodies responsible – in countries where these are not available. We are looking at employing students to visit courts on a weekly basis to assist with locating and digitizing judgments handed down that week. We are engaging with lawyers in private practice to source legislation from some jurisdictions.

Of significance is the fact that we have never encountered resistance to the concept of Free Access to Law. The issues I have described relate to shortages of resources, skills and technical infrastructure – but not aspiration. Which is why it is critical that the strategies we employ do not undermine the self-sufficiency of nascent law reporting structures. It is perhaps in the subtleties of how assistance and support is offered that we can find ways to engage that are not overbearing. It takes just one person of vision and determination – a change agent – within a court, a university, a private practice, an NGO or a law reporting committee to unblock the system sufficiently that a legal information institute – whatever your definition – can develop. We therefore see our most important task as being to identify these change agents and to transfer our accumulated knowledge as well as that which we ourselves have been given by other legal information institutes. The transfer of knowledge has taken the form of training, internship and exchange programmes which we aim to grow further.

We have evolved our strategies according to the context in which we operate. Not all of them fit within the conventional LII approach. Some have been found to be questionable. But sometimes, further down the rabbit hole is the only place to go.

Kerry Anderson is the Deputy Director and Head of IT for the Southern African Legal Information Institute (SAFLII). She has worked variously in web development, research and strategy for an advertising agency, IT startups and financial services corporates. She has been known to be a badge-wearing supporter of the Free Software Foundation and is an old-school Perl hacker. She has since applied her skills to the furthering of the aims of Free Access to Law – delighted to have found the perfect synthesis of Law and Code.

She has a BSc in Computer Science, a BComm (Conversion) and an MBA. Her MBA dissertation was on the impact of Open Innovation on software research development clusters in South Africa.

VoxPopuLII is edited by Judith Pratt.

Newer Entries

Suffusion theme by Sayontan Sinha