Public Legal Information:
Focus and Future
Cornell Legal Information Institute
Internet-based public providers of legal information have enjoyed remarkable success thus far. In order to continue to succeed, they must work to build a diverse ecology of information sources unified by common standards aimed at increasing interoperability and easing resource location. More, they must realize that as more information becomes available providers must offer more than warehouses, allowing collections of legal information to grow into systems for self-education by a broad section of the public. Given the diversity of approaches that one might take to meet these expanding needs, retaining a sense of focus and purpose will be a continuing challenge.
Keywords: legal information, public access, policy development
This is a Refereed Article published on 29 February 2000.
Citation: Bruce T, 'Public Legal Information: Focus and Future', 2000 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-1/bruce.html>.New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/bruce/>.
In 1977 the Goals, Guidelines, and Standards Committee of the Public Libraries Association was asked to 'prepare an interim document to guide public library managers and lay decision makers in their efforts to see that their communities receive the level of library services they need and deserve' Published in American Libraries in December of that year, the resulting document was entitled 'A Mission Statement for Public Libraries'. It was unabashedly aspirational. Libraries, it said, were in serious trouble. The pace of social change and 'the exponential increase in the volume and complexity of the record of human experience' demanded that 'the public library assume a strong leadership role'. The document then paused to consider (before 'examining responses to today's societal needs') several terms of art that, in the words of the Mission Statement 'once described adequately the function of the traditional public library' but had aged poorly. In his book The American Public Library and the Problem of Purpose, Patrick Williams reports that:
The document provided a glossary. 'Access now implies innovative, imaginative delivery techniques which overcome geographic, educational, physical, and psychological barriers'. Community meant the world and 'literally everyone'. The term 'information now includes not only the sum total of recorded human experience - factual, scientific, imaginative, and humanistic - but also the unrecorded experience - to which library users may be referred. The last term was target groups, which meant 'all current and potential individuals and groups in society'.
At the time of publication the Mission Statement was taken quite seriously. Commentators called it 'dramatic', 'controversial', 'helpful', and 'very welcome'. Six years later, one of those who drafted it said it was:
...one of the most awful collections of contradictory, sanctimonious gibberish ever assembled in an effort to keep everyone happy... We tried to throw everyone a bone, perpetuating the idea that public libraries should serve everyone, fulfill all our social responsibilities, guarantee all librarians jobs they liked, assure the rights of minorities, and bring plentiful water to the deserts of Arizona.
Let's not go there.
I don't mean 'let's not go to Arizona'; Arizona is a fine place that, among other things, is home to the Grand Canyon and London Bridge. I mean that we should consider the future of public legal information without recourse to contradictory and sanctimonious gibberish, cosmic definitions and saccharine generalities. And, as the reader may have guessed, I also mean to suggest that some of the problems of purpose that have faced public libraries in the past face public electronic libraries of legal information now. What are we trying to do, and for whom? Those questions can and should be responded to in different ways in different places. Our individual and collective futures lie in answering them with focus and effectiveness.
1.1 A disclaimer
There is a tendency to assume that the experience of others validates one's own, and that the same problems face all of us. In discussing public legal information providers, temptation takes two forms. First, there is the danger of conflating the experiences and problems of an academically based provider with the problems of providing public, electronic legal information in general, and to assume that all such information providers are somehow alike. They may not be.
Supposing that one is clear about which species of genus provider one is considering, a second trap presents itself. Each provider of public legal information is, by definition, positioned between a creator or set of creators of legal information and a consumer or set of consumers thereof. Each provider will assume a character that is a cross-product of both source and audience. Too, we are all shaped by differing constraints, moulded indirectly by the historical practices of governments and academic institutions, and by different legal cultures. It is not clear, at least at the outset, that similarities of structure will outweigh these differences.
For that reason it is probably best that I be explicit about my own prejudices, even though I happen to believe that the similarities outweigh the differences. I intend to approach these questions from the vantage point of an academically-based public provider of legal information; one that is without strong institutional ties to government, and that at this point is funded roughly equally through grants and through consulting and joint-study income. Even that phrase 'academically based' should probably be qualified: ours is a graduate school of law, not an undergraduate curriculum, as it would be in most other countries. So far as our relationship with creators goes, it should probably be kept in mind that the American court system is itself confusing and complex, and the variety of arrangements it makes with providers and publishers even more so. This essay is a sampling of views taken from a particular and perhaps peculiar vantage point; whether they can usefully stand as general prescriptions is for the reader to judge.
2. Where have we been?
Part of the reason that the problem of purpose is so daunting is that the immediate past has provided us with so many purposes. (One could substitute the phrase 'problem of focus' for 'problem of purpose' throughout this paper without loss of meaning). To be sure, most of us have been forced to narrow our choices; resource and time constraints force us to set priorities on what we will provide, and to whom. But in general there has been plenty to do, few doing it, and great advantage to be found in pursuing sometimes diffuse targets of opportunity. That this has been so, and that it can continue to be so, is probably in itself the greatest achievement of the public legal information community. We have so many choices precisely because our own activities have opened up so many opportunities.
Consider: when I began working at Cornell in 1987, WESTLAW and LEXIS were in a position of enormous intellectual as well as commercial dominance in the American legal-information marketplace. Electronic legal information was what those behemoths said it was, and their assertions went for the most part unchallenged. At least partially as a consequence of this duopolistic regime, electronic legal information systems were a pair of spectacles looked through and not at. This is no longer the case. People are thinking about how to build more capable and more accessible systems. More, they have built them, in large numbers, using a variety of approaches to serve an unexpectedly large market. If nothing else, we have succeeded in fostering discussion and experimentation, and in opening up a vast sense of possibility. Some of those possibilities have been well-actualized in the public sphere and have in turn been a spur to commercial innovation, leading to improved services, interfaces, and pricing structures.
Put another way, the existing public legal information providers have for the last five to seven years enjoyed a more or less free field in which they have been able to fill a wide range of roles. The task for the coming years is for each of those providers to select among those roles - to find a more concentrated set of goals, and with it that focus which could also be called 'purpose'. In the 1980's, the public library community recaptured some of the direction it had so obviously lost in the 1970's; the injunction given public libraries was to 'concentrate and strengthen' We must do the same.
There are many strengths to choose from. An admittedly incomplete list of roles and activities successfully undertaken by public legal information providers in the last 5 years would include:
Publishing freely-available collections of legal information in the public interest, including the output of courts, legislatures, agencies, and other public bodies;
Developing computational techniques useful in creating and managing such collections, including full-text retrieval, automated markup and text conversion techniques, resource-location solutions, and so on;
Establishing publication standards for electronic legal information, either informally by example and leadership or by some more formal standard-setting process;
Identifying under-served markets for legal information and analyzing their particular needs and idiosyncrasies;
Providing experimental, distributed 'add-on' services for existing collections offered by the public and private sectors including finding aids, browsing aids, and other value-added, hyperlinked structures and corpuses.
Creating original writings that educate the general public and lay professionals in the use of legal information;
Experimenting with different market models, pricing structures, and systems of cross-subsidy;
Creating new types of finding aid and other editorial structures to assist consumers in locating legal information;
Acting as public-policy advocates to promote the free availability of legal information;
Adapting research and open-standards work undertaken in the digital library, computer science, law-library, and other fields to the problems of legal information publication and retrieval.
In underscoring the need for selectivity and focus I do not mean to suggest that our collective future will be as a tightly organized army of providers each with its own marching orders. What's wanted is more of an ecology, in which individual species are better adapted for one or more of these roles. For as the experience of the librarians makes clear, no one public-information critter can or should try to be all things to all people. At the same time, there are many reasons why biodiversity in the public legal-information sphere is both necessary and desirable; it is the only way to cope with the combinatorial explosion of potential creator-consumer pairings I mentioned earlier. Variety should not be a problem. The past two years have brought burgeoning activity by ever-larger numbers of commercial, academic, and governmental providers, each with its own set of target markets and each with its own style. Assuming all continues as it has been we should have all the diversity we could possibly hope for and then some.
3. Hippocratic considerations: doing no harm
Before going on to discuss what it might mean to have such an array of providers, let us pause for a moment and consider some possible impediments. Some of these are the traditional bogeymen of public access : lack of funding, exclusive publishing contracts or copyright regimes that cut off information streams at the headwaters, and so on. All of these have been discussed quite ably elsewhere. And these are, of course, the things we public legal information providers like to gripe about. But (not surprisingly) we have been much less quick to consider those matters in which we ourselves are, or could be, the problem.
The Hippocratic oath enjoins us to 'First, do no harm'. We need to be mindful of it simply because our activities may not be an unalloyed good. The reasons can be economic or they may be structural. The economic question is simply whether the availability of a free but less-than-optimal resource will inhibit or prohibit development of a better but necessarily more costly one by the private sector (or indeed, by some other apparatus). The structural question is really two questions having to do with institutional positioning, competence, and responsibility.
3.1 Damming the stream
Market-structure analyses of public legal information  have for the most part seen public providers as entities that add a low level of value at a point early in a chain of such value-adds, likely as its first link. Indeed, most such analyses do not contemplate public providers that are not themselves creators - in other words, they imagine courts, legislatures, and agencies to be the exclusive occupants of the public provider role. Obviously, the actions of such 'upstream' providers greatly affect those downstream. If a court is itself adding value equivalent to that offered by Westlaw, or close enough as makes no difference to the consumer, then there will be no private sector providers; few will buy what they can get for free. And I do not believe that the future of public legal information lies in replacing private-sector activity; it never has. Nor do I believe that (in the United States, at least) it could be done effectively.
The danger I perceive lies in the idea that even the unrealized potential for such a cutting-out of the private sector would be seen as sufficiently threatening to justify strict - and artificial - limits on the level of value that could be offered by issuers themselves. Actually, the real danger is not the setting of limits per se; that will happen regardless, as a consequence of a few inescapable facts: it costs some money to add any value, the pockets of public providers are not likely to be deep, and there are simply some things that government is not good at. The danger is that limits that are far too confining could be set in knee-jerk fashion without an informed public-policy debate. And the creation of the informed public that will have that debate is an important and genuine challenge.
Too, thinking about this as a sort of Robin Hood problem gives rise to artificially simplified analysis. Seeing the world as a struggle of public and private-sector providers tends to lead one to equally bipolar notions about the market for legal information. Indeed, this is the way that many have been viewing things. On the one hand, we have the public - unwilling or unable to pay much and not very sophisticated in its needs or in its use of the material. On the other hand, we have wealthy lawyers and law firms, boundlessly able to pay, sophisticated in use, and eager for the highest level of quality they can get. The reality is that there are many more markets than that, all differing in type and level of sophistication, and if anything our responsibility is to continue to point that out - both in the abstract, and by implementing prototype systems to serve those who need more attention than they have been getting. From an American perspective, such 'mid-level' markets include lawyers outside large law firms, public-interest groups of all sorts, foreign lawyers, and any number of lay professionals in addition to the general public.
I can make two simple prescriptions in the face of such complexity. One is obvious and a second is more the product of instinct and experience than of close reasoning. Obviously, we must guarantee an informed debate. The public neither knows nor understands what is at stake when these matters are discussed; it is our problem to educate them. My second prescription is, in a sense, an outgrowth of the first. The debate should be informed by reference implementations, collections of information that can be pointed at as examples of what is being talked about. It is the construction of 'crown jewel' collections - those testbeds and demonstrations of the bundling and unbundling of value in electronic information that are already a major activity of most public legal information providers - that will offer the public the best idea of what is possible. The notion of providing leading examples is, of course, nothing new. But it will demand more of us as technology evolves, and will force on many patterns of growth that it is not certain they can sustain, as the maintenance of legacy collections begins to compete with the mounting of new materials for time, money, and attention.
3.2 Structural issues
A moment ago I nodded in the direction of so-called 'structural' issues - places where the positioning of public legal information providers potentially makes them a problem rather than a solution. There are actually two problems here; we might term them the 'let George do it' problem, and the 'cheap date' problem.
3.3 Let George do it
In the 'let George do it' scenario, active public providers of legal information become excuses for inactivity by others. I see this as a particular danger for those of us doing applied research within legal academia. In the mid-1980's the US had, as it has now, a consortium for the construction of computer-assisted instructional materials in law, known as CALI. Historically it had worked rather well as a central source of computing expertise and distribution facilities for that small population of American legal academics who were creators or consumers of computer-based lessons. But it had never been intended to provide general support for computing in teaching and research, or to launch projects other than the authoring of CALI lessons. And though this was not its fault and certainly not its intention, its existence was often used to stifle local projects. It was very easy for a dean or other fiscal officer to simply announce that one or another project was 'the sort of thing that CALI ought to be doing', and deny any local support. The fact that CALI had no intention of doing any such thing, or for that matter any ability to do it, was more or less irrelevant. Had CALI actually been in a position to do what was claimed for it and support, encourage or otherwise help local efforts, there would not have been much harm in this. But of course CALI was not, and there was probably no reason for it to be; it was not an organization formed to provide budgetary relief for individual institutions.
Many in the public legal information community are engaged in applied research aimed at creating a public legal information architecture. It is in this general area that I think the danger of 'letting George do it' is likely to be greatest. Law schools (in the US, at least) are not terribly comfortable as centers for what many see as arcane computer research unrelated to the study of law, even though they are the logical places for it to occur. I hate to believe that the general lack of electronic publishing activity at many institutions can be attributed to strong activity at a few, but unfortunately this is probably so. What can be done about it? Some part of the solution may be as simple as promoting publication and exchange in the community of those who are working in these areas, of which there has been remarkably little so far. And each of us needs to do what we can to support activity in other institutions, and to offer professional validation and assistance to those whose efforts are taking place at the institutional margin. Some of us already operate under consortium arrangements; we need to make them as all-embracing as we can. And all of us need to be imaginative and persistent in implementing other forms of inter-institutional arrangement, as well as finding improved and continuing means of public/private sector co-operation.
3.4 The public legal information provider as cheap date
As a fairly visible provider of public information, the LII is often approached by people and organizations that have what one might term a highly-developed work ethic for others. We should, they believe, use our vast resources and infinite student labour to produce some particular legal information resource they want. Of course, our deep passion for our work, our lavish funding, and our privileged place in a public institution that has none of the expenses or worries of government, or private practice, or real life will lead us to do this at no cost to them. Sometimes, we agree with them. More often, we don't. To some extent this is simply a question of resources. We have a staff of almost three, and a finite budget. But to some extent it is also fear of the long-term consequences of offering our services too freely.
That there are such consequences is amply illustrated by the history of the public distribution of Circuit Court decisions by US law schools. In 1995 the Emory Law School obtained fee waivers and permissions that would allow them to electronically distribute slip opinions from a few of the US Circuit Courts of Appeal. Villanova, Georgetown, Pace, and Touro did likewise. The notion of a consortium to create common standards and practices was put forward, and various representatives of court-administration bodies were invited to sit in as well. The result was a loosely co-ordinated series of sites that were, and are, distributing the opinions of most of the Circuit courts.
This project could be seen as a successful effort on the part of the Federal courts to obtain electronic publication services at no cost. Moreover, by passing publication responsibility to law schools, the courts could avoid indefinitely some of the shoving and hauling then surrounding the use (or non-use) of vendor-neutral citation. It is doubtful that such a degree of calculation was involved, but in the long term this was precisely the effect that the project had. And unfortunately the level of service offered by the participating law schools has not, for the most part, been that great. Collections lack citations. Of late, some have become spotty and incomplete, either because institutional interest has waned or because key personnel have departed - both, ultimately, symptoms of underfunding and other forms of institutional starvation. Others are visible only through the keyhole of full-text search, without other finding and browsing aids such as lists by party name. Still others are built in such a way as to defy incorporation in a comprehensive search tool that would work across all thirteen. And of course disparate markup practices and page designs are confusing to the user moving between collections. Only three of the thirteen circuits have emerged as publishers of their own data in the time since, and only one of those offers an archive extending back further than 1995. This is hardly surprising, since there are insufficient incentives for them to do anything other than continue to let the law schools do as they have been doing.
Of course, one should not curse a dime because it is not a dollar; many well-intentioned and capable people have devoted much effort to creating something that is of genuine use to the public. But in this case it is also true that public providers eager to offer collections as a means of institutional promotion simply allowed themselves to be bought too cheaply. It is a temptation we must resist. There is great potential good to be done by serving public bodies, at least until they can stand on their own feet as electronic publishers. But there is great harm in doing so in a way that adds little value, that may be unsustainable, and that permits official bodies to shirk their responsibilities.
4. What is implied by the emergence of creators as providers?
We need not look far to find better models. The efforts of AustLII, the LII, CRDP, and others serve as leading examples of what is possible when academic public-information providers mount flagship collections whose architecture is then imitated by others - particularly by those who create the data in the first place. If it is possible to speak of traditional roles in an arena which is at most seven years old, then this is the role that academically-based public-information providers have traditionally played, and they have played it well. There is little doubt that the state of public legal information is the better for it. Indeed, at times the relationship between leader and follower assumes the more amusing aspects of 'monkey-see, monkey-do', as features of particular systems are quickly imitated and adopted.
Leader-by-example (or sometimes leader-by-shame) is an easy role for most to understand. After all, the application of academic research to public problems is hardly new, even in law schools. But it is not the only role for academic centers to play, and the leader-follower relationship is not the only relationship that academic centers might have with courts, legislatures, and agencies. Indeed, there is reason to believe that it may be a harder role for them to maintain as time goes on. Seven years ago almost all expertise in matters of Internet information distribution resided in universities. This is far from true anymore, though of course the continuing evolution of technology does tend to confer an edge on those research institutions that are free to do research. And if that is an odd locution - research institutions remaining free to do research - it is representative of an even odder situation. At the LII we find ourselves increasingly stifled under the weight of our collections; we are responsible to those who look to us for reliable services to the tune of a million hits per day on average. And that responsibility, added to our research activities, has called for some growth both of staff and resources. And to the extent that such growth has not been possible we have been forced to rein our exploratory selves in a bit. It may sound silly or self-serving to talk about 'death by success', but that is exactly what it might be. The desultory experience that the American public legal information community has been having with the development of XML and SGML standards and applications may, for example, represent exactly this phenomenon: the kind of important work for which everyone has need but no-one has time.
It is becoming increasingly obvious that the issuers themselves - the courts, legislatures, and agencies - are in the best position to maintain and publish their own collections of data. For one thing, there are far more issuers and much more data than academic institutions alone can handle. And there is some considerable feeling that quite apart from arguments about institutional competence there are compelling reasons why courts, legislatures, and agencies should , as a matter of public policy, publish their own materials. To the extent that such public policy arguments are within the scope of this paper I will deal with them later. For the moment let us focus on some of the practicalities involved. What, beyond simple leadership by example, might academic legal information providers do to help issuers become self-publishers?
4.1 Developing standards for interoperability
One obvious answer (and it is certainly nothing new) is that the university-based operations have a crucial role to play in the development of functional standards for the electronic dissemination of law. By 'functional standards' I mean two things: first, a core set of behaviours and capabilities that all public information sites should exhibit; and second, a set of data elements that should be extractable from any document containing them. By this latter I mean to imply not only such things as functionally-equivalent tagsets for different classes of legal document (perhaps an XML namespace or namespaces) but also standards for metadata, exposure of fielded information to search engines, and so on. In effect the academic providers have been engaged in an informal attempt at this from the beginning, one that (as we remarked earlier) has largely been a matter of setting examples which in turn set public expectations. It is probably time for some slightly more organized efforts, and the role of 'organizing catalyst' may go to the academic providers by default.
I say 'organizing catalyst' because it seems an accurate way to describe a leadership role in a milieu where the one certainty is that nobody can tell anyone else what to do. We ought to rely on the classic Internet approach based on 'rough consensus and running code' - that is, an iterative cycle of testbed construction, documentation, and discussion resulting in standards everyone can live with. Someone needs to get this started, and it would seem that - in the United States at least - the academic providers are the only people positioned to do so. Government is ponderously slow to develop and implement standards and, in the US, government seems (to an outsider at least) to be the scene of baronial warfare between traditional fief-holders like the Government Printing Office and the Library of Congress.
Neither individual members of the commercial legal publishing world nor any group of them are likely standard-setters. The private sector in the US is characterized on the one hand by a desire to capture any standards process and bend it to proprietary ends, and on the other by a belief that markup standards (in particular) will erode their respective competitive advantage. This latter belief is part confusion, part arrogance, and part the sort of protectionism that has sought to protect page numbers with expansive copyright claims. To be sure, commercial publishers do enjoy competitive advantage through the addition of genuine value via such editorial mechanisms as headnotes and synopses. This, however, is a much more sophisticated source of value than the marking-up of such features as the name of a case and the date on which it was decided; commercial publishers seem to confuse the two. As to arrogance, each commercial operation seems to believe that it is the only one with the wit to mark up the name of a case or the name of the judge writing the opinion. It is simply not that difficult to decide which parts of a judicial decision are useful metadata. Markup of judicial decisions (and, to a lesser extent, of statutes and regulations) is probably not rocket science, and if it is, it is not rocket science that only commercial publishers can do. The degree of difficulty involved is not great enough to justify protection for proprietary approaches. Nevertheless, the commercial publishing community remains blind to the idea that they may stand to gain more from a basic interchange standard than they will lose, and it is unlikely that they will provide leadership or even co-operation.
The creation of standards groups will be difficult no matter who leads. Often discussed, it has just as often been dismissed, largely because public providers lack the time, resources, and most of all the patience to go through an iterative process of documentation and consensus formation. We need to begin, avoiding the traps of bureaucratic nit-picking and self-important politicking that can characterize such activities.
4.2 Inverting the public-information paradigm
Work on standards is important, but there are attitudes to be worked on as well, particularly with those issuers who have long used demand-driven print-based systems to distribute public information. A report outlining strategies for dealing with toxic pollution in British Columbia states:
Those who produce and store legal information should regard its dissemination as an essential public service. Traditional access to information legislation focuses on the government's response to a citizen's request for specific information. This approach must be maintained but supplemented by routine dissemination of legal information. Dissemination allows citizens to receive information which they might not have requested because they were not aware of its existence. Also, it allows for more efficiency in the storage and distribution of information than does the traditional request-response approach.
One might think that the existence of so many government web sites - themselves obvious instruments of at least somewhat proactive dissemination - is ample testimony that the demand-driven approach is dead. In some quarters it may be, and it won't be mourned. There is, however, ample evidence that any report of its death is, in Mark Twain's phrase, greatly exaggerated.
First, there are any number of issuers that simply don't publish via the Web. In the United States, the most glaring examples are the District Courts, relatively few of which have Web sites containing any opinions. They seem to be among the last survivors of the put-up-a-staff-roster-and-to-hell-with-'em approach which characterized American government web publishing four or more years ago. But simple failure to disseminate is not the only way in which the demand-driven approach is manifested. We see such thinking expressed metaphorically in the architecture of many government sites whose avowed intent is exactly the sort of routine dissemination we want. As examples we have:
The opinions of the Eighth Circuit Court of Appeals, fully text searchable but not available via party-name listings;
An offering of the Code of Federal Regulations by the US Government printing office that (at least initially) offered full text search without the ability to browse tables of contents; and
A variety of state-government sites including those of Colorado, New Jersey, Georgia, and Oklahoma; none of these offer tables of contents, browseable finding aids, or anything other than a keyword search mechanism. In one case a table-of-contents feature built in to the Web server appears to have been deliberately disabled.
This sites require some fairly considerable foreknowledge in order to be useful, and in that sense they do exactly what public bodies have always done when they sit back waiting for the public to call. They are passive, and, for the reader who has only a vague picture of his goal, there is nothing to provide guidance. More, they fail to provide the richer information context that an intelligent if naïve user can gain through the study of adjacencies and a higher level view of how a collection of legal information is organized. We tend to think of these as simple usability issues, and indeed they are. But they are also indicators that the bad old days of passive response to citizen interest are still with us, and too much of the burden for finding information remains on the user. Such sites may indeed support public access to legal information, but that access is not especially effective. We shall return to this notion of effective access later.
One might argue that Web publication itself is an example of the same passivity, at least insofar as we have tended to focus on it to the exclusion of other modes of dissemination. We have not exercised nearly the same creativity in setting up current-awareness services that we have in building Web sites. Because such services are often mail-based they have perhaps been technically uninteresting, and therefore less appealing to us. And most of us have (rightly) been suspicious of so-called 'push' technologies like PointCast or Marimba that seem to be little more than an attempt by marketers to turn the Web into something they can understand, namely television. Nevertheless, there is a great need for active 'early warning' or current-awareness systems, bulletins, newsletters, and other means of bringing legal information to the attention of those interested with little or no effort on their part. Much more can be done than has been thus far, particularly in those areas where niche audiences are easy to identify.
5. Providers as centers of study
Frequent use of the phrases 'applied research' and 'standards development' in the discussion so far implies that academically-based public legal information providers have a role as centers for those activities. We can be research centers in ways that public bodies cannot; this has been amply demonstrated by our successes of the past several years. Those successes rest in turn on the ability of university-based operations to draw on other resources found in universities, which are after all rich sources of talent in many disciplines. Indeed, most of us are already operating as some species of interdisciplinary collaboration, and as interpreters of the work of one community (computer science) for the benefit of another (law). But we can bring the work of many more disciplines and sub-disciplines to bear than we have so far. We have done a fair amount with information retrieval as a computer-science phenomenon, but little with it from the perspective of librarians or from the standpoint of the emerging discipline of digital library science. We have also done little to involve economists, social scientists, and others that might have something interesting and useful to say about what it is that we are up to.
5.1 Legal information providers as the object of study
And that in turn suggests that we ourselves might become the object of new kinds of study or a new venue for some very old ones. In The Common Place of Law, Patricia Ewick and Susan Silbey attempt to, in their words, 'map and understand [the] variety of law's presence in everyday life.' The book is, in effect, an ethnographic study of interaction between the general public and the legal system. Their methodology relied largely on survey-style interviews of some length conducted with a random sample of New Jersey residents. Interviews with 430 respondents were used in the book. They might have done well to start with a month's worth of e-mail from LII users. By the same token, Susan Koniak's writing about the legal theories of American militia groups attempts to derive a coherent picture of what one might call an 'outsider jurisprudence' from writings that could easily have been culled from mail we have received over the years from some of the more unusual and outspoken consumers of the legal information we offer.
My point is not that Ewick, Silbey, or Koniak would have done better to dwell in cyberspace. Rather, I mean to suggest that virtual law-places are themselves public spaces in which interesting and important activity takes place - activity, as it were, 'around the law'. That activity may interest those who study the interaction of individuals and groups with the legal system. While we have been slow to study (and too much of the time unable to find out) what it is that people really do with the information we provide, we have been even slower to ask what it is they might be thinking and expecting when they come to us. And these are not matters of exclusively ethnographic interest. They have real implications for the design of things that we build. For surely the usability of our systems must be expressed at least partly in terms of their capacity to serve a public that approaches them with (often erroneous or naïve) beliefs about how the law is structured and what it can do for them. It has never yet happened that a disappointed LII user has sent us mail beginning with the words, ' You lousy computer scientists can't design a retrieval system to save your lives'. Instead, they say, 'It's just like you scumbag lawyers to hide information'. For many, interaction with a search engine that looks at legal text is just an episode within a much more extensive - and often harrowing - experience with law, the legal system, and lawyers. We know little about the intellectual, educational, or experiential context of our audiences, and we would do well to find out. But whether such studies would serve us directly or not, electronic legal information spaces are arenas for interactions about which we know little - interactions between the public and black-letter law. They are not only the product of interdisciplinary study; they are objects for interdisciplinary study in themselves.
6. Effective access
All this suggests that there is more to providing public access to the law than we have heretofore imagined. Until now most of us - techno-geeks at heart - have been reasonably content to offer large collections of information whose usefulness could be best gauged in ways with which technologists are comfortable. We could be judged, we thought, by the completeness and sophistication of our markup, by the navigability of our information architectures, by the speed, precision, and recall of our retrieval systems. And of course all of that was and is undeniably true, and it has served to take us an incredible distance from where we were just a few short years ago. But it will not, I submit, take us everywhere we want to go. We need to arrive at some rather concrete notion of an effective public access architecture. And to do so will require that we think of ourselves rather differently.
In July of 1852 the committee which was charged with the creation of the Boston Public Library - the first major public library system in the United States - said:
We consider that a large public library is of the utmost importance as a means of completing our system of public education... The trustees would endeavor to make the public library of the city, as far as possible, the crowning glory of our system of city schools... fitted to continue and increase the best effects of that system, by opening to all the means of self culture through books. There can be no doubt that... reading ought to be furnished to all, as a matter of public policy and duty, on the same principle that we furnish free education... It has been rightly judged that, under social, political, and religious institutions like ours, it is of paramount importance that the means of general information should be so diffused that the largest possible number of persons should be induced to read and understand questions going down to the very foundation of social order, which are constantly presenting themselves and which we as a people are constantly required to decide, and do decide, either ignorantly or wisely[27 ].
The public legal information providers of today are certainly not public libraries as we have come to know them. But public legal information providers do resemble this early, aspirational vision of public libraries as systems for the promotion of self-education. And it is precisely this self-education that must be the basis of effective public access to law. If, then, we imagine ourselves to be in the business of providing effective access it follows that we will do things rather differently than we have in the past, trying wherever possible to provide a better environment for self-education.
I don't mean to suggest that we become the People's Law School or the Sword of Social Justice or any other high-sounding Capitalized Noun Phrase suggestive of a populist political agenda. That way lies precisely the madness I remarked at the beginning of this paper. The fact is that public legal information services are, like public libraries, relentlessly middle-class institutions. As the failure of American public-library outreach movements thirty years ago amply demonstrates, it would be both foolish and dangerous to pretend otherwise. However, saying that they are relentlessly middle-class is not the same as declaring that their only audience is made up of trained or semi-trained lawyers or semi-lawyers seeking a low-cost alternative to commercial research services. Regardless of populism or politics, it ought to be clear that an effective system of public access demands something rather different from us than what we have been delivering. The concept of effective access implies that our readers be able to understand what it is that we put there for them to read. And that in turn demands that our systems do more than they do to expose context, interrelationships, and structure as they are found in those legal systems of which our electronic texts are the expression.
When we approach such lofty notions at all we usually content ourselves with some vague declaration that the rule of law demands that the public be given access to law. In ringing tones we assert that, if ignorance of the law is no excuse, then there is an obligation to publish the law. We say little about how well what we publish is understood, or how it relates to what an informed lay professional (never mind an average citizen) already knows. And if forced to think about that problem of understanding, we either throw up our hands at the impossibility of providing general legal education to a global population, or we retreat into nostalgia. We imagine that things used to be better, either when we ourselves were learning, or during those formative times in the past when the public was making big decisions about what it wanted its law to be. 'People just don't know about civics', we say, or government, or law. When we (and by 'we' I mean Americans) consider those times in our history where questions of law and governance were up for grabs we imagine that everyone was, somehow, as well-informed as a Thomas Paine or a Thomas Jefferson - that in the past, all these problems took care of themselves. I suspect that the coffeehouses and tea shops of pre-Revolutionary Boston looked and sounded no better than the average Usenet group (imagine, if you will, alt.convention.constitution), at least so far as the level of uninformed opinion being bandied about is concerned. And, nostalgia or no, educational problem or no, it is still the case that out of the countless millions of American legal documents available via the Web today only a relative handful offer the user either explanation, exposition, or the pathway to them.
But these are all highfalutin' sentiments uttered in the same thundering tones I was mocking a few moments ago. There are real and intensely practical problems here, problems we would find if we asked, 'What does context-sensitive help mean, when the domain is public legal information?'. Consider the intelligent layperson who steps up to an AltaVista or a Yahoo with question in hand and legal problem in mind. It is not farfetched to imagine that she could formulate a search adequate to pull up a reference to the United States Code, or better still a Supreme Court decision. 'Aha!', she says, 'that looks like the last word on my problem', and click! she finds herself dropped like Alice down the rabbit-hole into a Supreme Court opinion that seems vaguely related to her situation, but on some odd, abstract, and subtly distorted plane well removed from the treatment her child has received at the hands of school authorities or the problem that her small business is having with the inspector or the tax collector. And at all too many of our sites there is then nothing that would lead her toward context or explanation. The textual architecture is good. The things that can be marked up are marked up, and they are marked up in a sophisticated way. The operation of the search engine is speedy and even helpful in the way it brings results to her attention. But none of this confers on them the ability to understand or use what they have found, either on their own behalf or as a way of judging whether professional help is needed, nor does it suggest a path to either the understanding or the helper. And all of those are things that we can and should provide in the future if effective access is what we are about.
As those in the nineteenth-century public-library movement recognized, any publicly-accessible collection of knowledge can and does begin to function as a system of self education, particularly when other means of obtaining that education are lacking. Obviously the delivery systems we now have are far more suited to the task of self-education in any place at any time than big buildings full of books ever were. We can make them even better if we acknowledge that self-education is an important part of what we are providing, and take the steps necessary to guarantee that public access is effective as well as ubiquitous.
7. Public education
Public legal information providers need not only to be sources of public education but the object of it as well. Jamie Boyle has recently pointed out the vast success of the ecology movement in raising public awareness of ecological problems over the last two decades, and suggested that a similar approach might be needed to create real change in intellectual-property regimes in cyberspace. I would argue that something of the sort is needed for public legal information as well. For the fact is that most simply do not understand what is at stake; the whole thing appears to be a bunch of lawyers arguing over who owns the law, or who should be allowed to print the books. As we all know, there are many more reasons why public availability of law ought to concern them Debates over who is to be allowed to publish the law, who is to be required to publish the law, and who is to pay for its publication all require that the public know more than it currently does[31 ] about how the publication and availability of law affects it. For many of the same reasons enumerated earlier in our discussion of standards formation, public legal information providers seem well placed to articulate the issues and present them to the public[32 ].
8.Conclusion: Back to the Future
As appealing as it is to cook up elaborate parallels and metaphors involving century-old technologies and aspirations, the ideas I am trying to set forth here are not complex. We built something. They came. Now, just who are they and what are they doing with these things we have built? What can they do with them? What do they know enough to do? And how are we to help others build more things like the ones we did? These are disarmingly simple questions. Answering them will require discipline and self-study.
It is not enough to simply build distribution systems - or perhaps it is more accurate to say that we've been there and done that. The real challenge is to guarantee that many different cases and conditions of people can go there and do that, building a vast diversity of new information sites, and that still other people can use them as a way of solving those problems that law is meant to solve. This is a tightrope act. On the one side, there is the danger of exactly the sort of complacency that has characterized the paper bureaucracies of the past: the danger of dumping data in a public place and saying, OK, we delivered it, what they do with it is not our problem. We need to do more that is proactive, and more that is aimed at help users educate themselves. At the same time, there is the danger of falling into a vast, squishy morass of trying to be all things to all people, and we need to be at some pains to avoid that too. But I believe that if we act with focus and purpose we can become not dumping grounds for legal data but accessible storehouses of legal information - that is, data that people, particularly lay professionals, can use and apply .
1. The Public Libraries Association is the dominant association for publicly-funded libraries in the United States.
2. This and subsequent quotes from the PLA document are taken from Patrick Williams, The American Public Library and the Problem of Purpose, Westport, CT: Greenwood Press, 1988, p 116 ff.
3. Some would rightly point out that much of the present character of the legal publishing scene in the US is also owed to the effective consolidation of the industry into two large camps, one owned by Thompson and the other by Reed Elsevier. But one should consider for a moment what could have happened were this to have occurred with technology as it was in, say, 1988. To some degree the negative effects of consolidation have been offset by the existence of small publishers (characterized amusingly by my colleague Peter Martin as 'piranhas among whales') and, more effectively, by the prospect of self-publication by courts, legislatures, and agencies.
4. This suspicion seems all the more justified if one compares the individual ponderings of principals at (for example) the LII and AustLII as variously expressed in annual reports and papers. See, eg., Greenleaf, A Restatement of AustLII, and Bruce and Martin, The Legal Information Institute:A Quick Overview.
5. This may seem a strange statement, but one should bear in mind that dominance can arise as easily from the apathy of others as from any particular qualities of one's own.
6. There were, of course, exceptions, notably the precision-and-recall studies by Blair and Maron (extensively described, along with other useful information, in Dabney, The Curse of Thamus: An Analysis of Full Text Legal Document Retrieval, 78 Law Library Journal 5. There were also low-level rumblings from the information-retrieval community, which found the commercial operations to be technically complacent, as they often were. But for the most part the consumers of legal information were at least resigned to, if not happy about, what they were getting.
7. Lowell A. Martin, 'The Public Library: Middle-Age Crisis or Old Age', Library Journal 108 (January 1, 1983): 19.
8. A more detailed discussion of this combinatorial effect is contained in a earlier dispatch from the front lines, in Bruce, Legal Information, Open Models and Current Practice, proceedings of the CRDP Conference on Crown Copyright in Cyberspace, 1995.
9. The grant of exclusive contracts for the distribution of public documents is an interesting historical accident in America. At the outset it seems to have been as much a product of the printer's desire to guarantee a minimum number of sales in what was perceived to be an unprofitably narrow market as it was any sort of continuation of English practice. However, the author finds it doubtful that pointing at today's wider market would induce any of the quasi-monopolist legal publishers to give up their position, or the public bodies to give up the income those quasi-monopolies produce.
10. Some, like Larry Lessig, are calling for the creation of a 'digital commons' as a means of resisting intellectual property regimes that they see as a kind of enclosure movement in cyberspace. In the United States, at least, past performance gives us good reason to be wary. (Lessig, unpublished keynote speech, Strategic Planning Session, Building a Digital Commons, Berkman Center for the Internet and Society. RealAudio recording.
11. Notably Henry Perritt, Jr., 'Market Structures for Electronic Publishing and Electronic Contracting on a National Research and Education Network: Defining Added Value', in Building Information Infrastructure, Brian Kahin, ed., McGraw-Hill Primis 1992 :344-402.
12. Despite the fact that writings extolling the virtues of the present commercial system in the United States have been seen as the work of apologists for the commercial interests, and despite its many defects, the fact remains that the commercial system does a number of things well. The principal problem is that it does not do them for enough people at a price they can afford, nor do they serve as the basis for a system of self-education.
13. AustLII has taken the position that it is the business of the public providers to plant a stake in the sand, effectively challenging commercial providers to earn their keep by going beyond it:
To put it another way, one function of public legal information servers is to provide a benchmark or basic standard of computerised legal resource which does not require payment for use. Legal publishers will need to add value beyond that standard if they are to convince the market to pay for their products. For some users, the resources provided by public servers such as AustLII will be all that they need or can afford. For others, the added value provided by commercial publishers will be well worth the cost.
(Greenleaf, King, Mowbray, and vanDijk, in Public Access to Law via Internet: The Australasian Legal Information Institute.
While this is probably the most articulate statement to date of the 'lead-by-example' philosophy that most of us follow, it strikes me as a touch too unilateral to form the basis for lasting policy. Something more affirmative is needed from the growing galaxy of providers.
14. There are, of course, notable exceptions to this. But we have all been very busy doing other things, and. at the LII, at least, there has been a tendency to view the publication of techniques, standards, and practices as something of a luxury.
15. It would certainly seem that the experience outside the United States in this area has been much more rewarding. See, eg., Greenleaf et al., Public Access to Law via Internet: The Australasian Legal Information Institute.
16. I am sure that by offering this project as a somewhat ill-starred example I risk offending those involved, many of whom are friends and colleagues. This was and is a worthy project, well-deserving of effort - but it was not the right thing to do from a public-policy perspective.
17. This is not an argument for centralization. It is an argument for standards.
18. At the 1993 CALI conference in Chicago, the author observed that an accident involving one of the conference shuttle buses could easily have wiped out all of the Internet expertise in the entire American legal community. This may have been more funny than true even then, but it was undoubtedly the case that academic operations then enjoyed a considerable advantage of expertise over the commercial sector which has since dissipated.
19. The author here has GOSIP in mind, the government standard that took 14 years to formulate without once producing a working application. For an appropriately scathing critique of GOSIP and the underlying OSI standard, see generally Marshall Rose, The Little Black Book: Mail Bonding with OSI Directory Services (Addison-Wesley, Englewood Cliffs, N.J, 1992)
20. This tendency has been most visible in the struggle for competitive advantages and attempts at capture surrounding the creation of standards for electronic filing of legal documents with courts; major players include Microsoft, Lexis-Nexis, and West Group.
21. C. Sandborn, W.J. Andrews and B. Wylynko, Preventing Toxic Pollution: Toward a British Columbia Strategy (Vancouver: West Coast Environmental Law Association, 1991) p. 148.
22. For an interesting (and harsh) article on this subject, see James Johnston, 'Why Aren't More Decisions Online?', Legal Times, January 26,1998
23. Ewick, P., & Silbey, S. S. (1998). The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press.
24. Some qualification is needed here. Ewick and Silbey were actually at some pains to avoid specifically legal settings; they did not dragoon interviewees from the police station or interview them on the courthouse steps. They wished to let respondents introduce their own stories of encounters with the legal system and express their attitudes toward them without explicit or implicit prompting by interviewer or surroundings. Insofar as a legal web site is a 'law place' like a police station or courthouse, it would not be a satisfactory place for Ewick and Silbey to have worked. That my suggestion here is somewhat at odds with what Ewick and Silbey did in no way invalidates legal-information web sites as a locus for what social scientists studying public interaction with the legal system might do.
25. See Susan Koniak, 'Gathering Storm: America's Militia Threat' (book review), Michigan Law Review, May 1997: pp 1761-1798
26. So far there seems to be little study of any kind in this area, though some informal contact with other researchers leads the author to believe that we may soon see some studies of large-scale academic text projects such as the Perseus Digital Library at Tufts University.
27. Boston, Report of the Trustees of the Public Library of the City of Boston (Boston: 1852), 15-18. The complete text of the report can be found in Shera, Foundations of the Public Library: The Origins of the Public Library Movement in New England (Chicago: University of Chicago Press, 1949), pp. 268-90.
28. Though it is well beyond the scope or intention of this paper to provide any actual proof of this sweeping generalization, there is some evidence in the logfiles of at least one large legal website (mine). Statistics show that access to the materials offered by the LII overwhelmingly favours topics largely of interest to the middle class and that it occurs, again overwhelmingly, during business hours in the United States. The concerns reflected in e-mail sent to us by readers tends to bear this out as well. All of this is, of course, further evidence that the study of public legal information venues by social scientists is both overdue and to be welcomed.
29. See generally Harrison, pp. 99-124, a chapter revealingly titled 'Information for the People'.
30. This is easier to see from the perspective of (say) someone from Kenya, where there has been no reporting of court decisions since 1968. One Kenyan judge described this situation to the author in a way which suggested a card game played by small boys, with lawyers for each side pulling precedents out of their hip pockets that would 'trump' the other fellow. Apparently the use of non-existent precedents is reasonably rare, though not unheard-of.
31. An interesting perspective on how well-informed any such debate is likely to be can be gained by a look at two recent developments in American legal publishing: the debate over vendor-neutral, media-neutral citation schemes, and the antitrust investigation surrounding the acquisition of West Publishing by Thomson. See a short bibliography of reports on the vendor-neutral citation issue. On the West acquisition, see John Morris, 'How West Was Won', American Lawyer, Sept. 1996 18 n. 7 p. 72.
32. Interestingly (and uncharacteristically) the organized bar in the US seems to be participating in this process as well. The one major policy debate that has had any public prominence at all is the discussion of vendor-neutral, media-neutral citation, where the bar seemed to take on a much more prominent role than is usual for it.