ONLINE PUBLIC ACCESS TO PRIMARY LAW: THE TIME HAS ARRIVED

Brandon S. Biagioli holds a B.A. in Mathematics, Philosophy and Computer Science from the University of Wisconsin- Madison and  is currently a 2L at the University of Illinois School of Law.   He spent the summer of 2012 as an intern with CALI investigating the possibility of an open, online public law library.  The following blog post represents his thoughts on the matter.

ONLINE PUBLIC ACCESS TO PRIMARY LAW: THE TIME HAS ARRIVED
Human institutions of justice exist to assist the poor and marginalized that would otherwise be unable to protect themselves.  To be a truly effective system of justice, access to this system must be barrier free.  To the poor, every cost is a barrier to access and unfortunately, justice systems incur myriad bureaucratic costs.  Therefore, institutions of justice should work to reduce the access costs generated in order to become effective.

Fortunately, there are many such options available.  One of the most easily attainable and widely beneficial steps is to lower the cost of researching the law.  This article will describe the creation, maintenance and benefits of a one-stop website where anyone – the general public, attorneys, law students, etc. – can find and research all primary law sources.

For the purposes of this article, and to differentiate from past efforts, I will call this the Citizen’s Law Library (CLL). The CLL will be a website which hosts both the law itself as well as key legal research tools.  It will be maintained by legal professionals who will be encouraged to participate by the realization that a few hours of time a year can erase thousands of dollars of research costs.  An API will be created from it that will encourage the development of new research tools by the technological community, either for altruistic or commercial reasons.  The end result will be basic and far reaching changes in the legal research market that will provide greater access to justice to the poor and those assisting them.

Access to justice amid budget crisis.

Partial solutions to the access problem have been implemented.  For much of our history, academic and court operated law libraries were the only places that the public had free access to law.  Then, less than fifty years ago, Gideon v. Wainwright, 372 U.S. 335 (1963) established that criminal defendants have a constitutional right to counsel and in reponse, public defender offices across the nation were launched in order to guarantee that right.  For civil issues, Congress created the Legal Services Corporation (LSC) in 1974 to provide “equal access to the system of justice”. (1) Unfortunately, all of these institutions have been eroding under financial strains exasperated by the recent recession.

A 2009 report by the LSC found that:

  1. Legal aid organizations turned away half of all eligible clients because they couldn’t afford to represent them.
  2. On average, the poor only received legal representation or advice from an attorney (pro bono or otherwise) for one-fifth of their legal issues.
  3. There are over 6,000 poor individuals for every legal aid attorney.  In contrast, compared to the population as whole, there are 400 people for every private attorney. (2)

Public defenders have been facing similar funding problems and caseload issues.  According to a 2010 survey by the Bureau of Justice Statistics, only about a quarter of public defender offices have enough attorneys to meet caseload standards. (3) Some public defender offices have attempted to be allowed to refuse cases. (4)

Unable to get help, or unaware that it might be available for free, more and more people have been representing themselves.  Courts have seen an increase in Pro se litigation. (5)  These litigants, too, have been hurt by the recession and its budget implications as the traditional place to access free legal resources is the nearest law library.  Some public law libraries have been forced to close, especially in rural areas, and almost all have had to cut back on resources that would assist the general public. (6)

Legal Research: a lawyer’s (expensive) daily bread

Legal research is a substantial cost of doing business for lawyers.  Eliminating this cost via a free online library will open budget lines that could result in positive Access to Justice effects across many sectors.  Public interest groups like the LSC and public defender offices could hire more attorneys and assist more clients.  Private lawyers could lower their rates and help more moderately-poor clients who might otherwise be unable to afford help.  Law libraries could concentrate on purchasing non-primary legal materials.  And, finally, Pro se  litigants could more easily access the information they need to avoid irreparable mistakes.

The most difficult to research area of American law – indeed of any common-law system – is case law.  American case law wasn’t published in a systematic way until the West Publishing Company started its National Reporter System in the late 1800s.   Some courts, like the US Supreme Court, have simultaneously published their cases in their own print set, but for the most part, commercially published reporters have been the only source of case law for attorneys.  Regardless of where cases were published, commercial indexes were the only way access and research the cases they contained.  These bound collections had production costs and through their purchase, attorneys paid for the cost of production.

Today, almost every court publishes its cases on the open free web, but this hasn’t stopped commercial legal publishers from dominating the legal research market.  Utilizing the access to this free case law, non-profit organizations, academic endeavors and open source experiments have attempted to enter the free legal research market.  Even Google has attempted to enter the arena through its case law collection on Google Scholar.  However, none of these have been able to become a real alternative to commercial law databases because they all lack two remarkably useful and manpower-intensive features: headnotes and citators.

Headnotes are annotations of cases, organized around a proprietary topical index.  In compiling headnotes, an editor analyzes each cases, takes note of what legal topics are covered by this case and notes where in the case this discussion occurs.  This information is then entered into a centralized dataset.  Researchers are able to read a case and see what topics are covered by it and exactly what is said on the topic.  They are also able to use these topical indexes – called “digests”  – to find cases on a particular topic across time and jurisdiction.

A citator summarizes how a given case has been treated by subsequent cases.  It will find when a case has been quoted, followed, expanded, limited or over-ruled. It can be used to find related cases and, more importantly, will reveal if the selected case is still Good Law.  Citator consultation is not only a valuable part of the legal research process, but failure to consult one constitutes malpractice for attorneys.   While tracking subsequent case citations is a process that can be automated, creation of a citatory requires attention from a trained professional who can interpret the words of the judge in the case and determine the type of treatment the cited case has received.
The social nature of the digital revolution.

The Citizen’s Law Library makes legal research free by making the producers of its legal research database the same as its consumers. This tactic, vertical integration, has been around since Andrew Carnegie took control of the needed raw material supply lines and streamlined the production of Carnegie Steel.  Today, the Internet makes it possible to apply this tactic to lawyers and their legal research needs. Arguably, the most revolutionary aspect of the Internet is not that it makes publication incredibly cheap and easy – if that were the case, it would really be not that much better than the printing press.  Rather, the revolutionary aspect of the Internet is that it is inherently social. Not only can you post on a blog with a click of a button, but your readers can just as easily post their comments, share it with their friends and colleagues and continue conversations elsewhere.

There is no better poster child for social media’s contribution to society than Wikipedia.  Since its launch in 2001, Wikipedia has grown to 22 million articles, 4 million of which are in English.  For comparison, the 2007 edition of the Encyclopedia Britannica had approximately 65,000 articles.  Wikipedia’s growth is the result of 100 million hours of volunteer editing.  This seems like an overwhelming number of hours until you consider that Americans watch 200 billion hours of television every year. (7)

The application of these successes to legal research is straightforward and similar ideas have been suggested before. (8)(9)(10) To make legal research free, the Citizen’s Law Library would collect and host all American primary law.  Attorneys would be engaged to annotate cases with headnotes and create the dataset that could be used to create a citator.  In other words, they contribute the content that they rely on in their daily practice and will get a legal research database worth much more than the time they have spent.  All of this would exist on a centralized website that could be maintained by a handful of full-time staff.   The public at large will have access to a legal information system that is publicly accessible in ways it has never been before.

Useful technologies and unimagined potential.

Headnotes and citators are valuable, but there are other ways that the law might be researched.  In order to invest in new ways of researching, the final element of this project is an Application Programming Interface, or API.  An API lets any programmer who is interested build new apps that work with the underlying database.  For the CLL, this would be American primary law, including annotated and indexed American Case Law.

This could be a game changer for legal research because one of the best ways to encourage innovation is to lower the cost of trying new things.  An API is therefore a way to invite the whole tech-savvy – lawyers and non-lawyers – to build tools we haven’t even dreamed of.  It dramatically lowers the barrier of entry because anyone can write applications to interact with the law, not just  the staff who’ve been hired full-time to do so.  The results could included customized automatic updates of changes in the law, digital casebooks with direct links to primary sources, better tools to help pro se litigants – the possibilities are unknown, awaiting discovery.

The integration of the API with the social nature of the rest of the project also gives the programmers a community of other programmers to collaborate with and a highly engaged and interested audience for their applications. There is ample opportunity for programmers to get feedback on their ideas.  This is a “natural selection” model for quality control: bad ideas can be identified quickly and fixed while good ideas celebrated, so that quality is improved without stifling the creative spirit of the community. 

Feasibility: more than a pipe dream

Since the creation of United States court systems in the  18th century, there have been approximately 9 million cases from the appellate courts or higher and every year these courts rule on about 350,000 new cases. (11)(12)  If a headnote/citator analysis of a single case takes one hour (on average since opinions vary wildly in length), then it appears that this project will require 9 million hours initially, plus 350,000 hours per year going forward.

However, this project would be a useful resource long before it reaches 9 million hours.  Not all case law is equally important; a small percentage of cases are cited much more often than the rest.  For example, only 16% of cases have been cited more than twenty times and only 3% are cited more than 50 times.  Eighty percent of all citations in published opinions come from about .03% of all cases.  (13) This is about 2000 cases, which going by our previous estimate, would only require 2000 hours of analysis. The most cited cases, something relatively easy for a computer to count, are usually more useful, so by doing a headnote and citatory analysis for those cases first, this project could be useful within a matter of a few months of being online, if the legal community is engaged quickly.

This early success would further encourage involvement by showing the project’s viability. Once the CLL becomes a usable research tool, the lawyers that use it have an incentive to continue to support it. It is hoped that the confidence that it is a reliable resource and the competitive advantage of being free will fuel broader adoption by the legal community. In the long run, the CLL could be sustained by half of all lawyers spending less than half an hour per year on it, or by 10% of lawyers spending 3 hours, or by 1% of lawyers spending 30 hours. (14) The crucial period, therefore, is the time spent to get the first 5% or 10% of cases ready; all that is needed is a deliberate effort to grow the CLL up to that point. Then it will have critical mass, and begin to ignite its revolution.

By making the law freely available, by developing headnotes and a citator to make the law truly accessible, and by developing an API to enable further innovation, this project brings the world of legal research into the third millennium, both technologically and culturally.

NOTES:

(1) 42 U.S.C. 2996 et seq (2006)

(2) Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans, Legal Services Corporation, Sept. 2009.

(3) “A National Assessment of Public Defender Office Caseloads”, Donald J. Farole, Jr., Ph.D., Bureau of Justice Statistics, October 28, 2010.

(4) For example, see State ex rel. Mo. Pub. Defender Comm’n v. Pratte, 298 S.W.3d 870 (Mo. 2009) (Missouri Supreme Court saying public defenders can’t turn away clients), and Escambia County v. Behr, 384 So. 2d 147 (Fla. 1980) (Florida Supreme Court saying trial courts can appoint private attorneys if the public defender withdraws because of excessive caseload).

(5) http://www.abajournal.com/files/Coalition_for_Justice_Report_on_Survey.pdf (53% of judges saw an increase in pro se cases from 2009 to 2010. Of those who saw an increase, 62% of judges said outcomes were worse for unrepresented parties, 37% saw no impact)

(6) For example, see “Closing Courts, Law Libraries, and Other Judicial Services: the Impact of the Connecticut Budget Cuts”, Irene Olszewski, http://ireneolszewski.com/ctlawblog/2011/07/20, retrieved 7/8/2012, and “Supreme Court closing regional law libraries”, Chris Dickerson, http://www.wvrecord.com/news/235779-supreme-court-closing-regional-law-libraries, retrieved 7/8/2012.

(7) Cognitive Surplus: Creativity and Generosity in a Connected Age, Clay Shirky, Penguin Group, 2010

(8) http://elawresearch.wordpress.com/2011/03/03/wikipedia_for_law/, retrieved 7/12/2012

(9) http://blog.law.cornell.edu/voxpop/2010/03/31/crowdsourcing-legal-commentary/, retrieved 7/12/2012

(10) http://blog.law.cornell.edu/voxpop/2010/03/14/collaboration-and-open-access-to-law/, retrieved 7/12/2012

(11) This estimate comes from searching for “court” on Lexis Advance™, on the assumption that just about every case has the word “court” in it somewhere. Search done 7/3/2012.

(12) http://www.courtstatistics.org/Appellate/AppellateIncoming.aspxhttp://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2011/tables/B00Mar11.pdf, retrieved 6/27/2012

(13) “The Web of Law”, Thomas  A. Smith., San Diego Law Review, May/June 2007

(14) There are about 1.2 million licensed lawyers in the US [http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2011.authcheckdam.pdf, retrieved 6/27/2012]. Half, or 600,000 lawyers, can do 350,000 hours of work by doing half an hour each. 10%, or 120,000 lawyers, can do it by about 3 hours each, and 1% can do it by 30 hours each.

Photo credit: http://www.flickr.com/photos/ericejohnson/

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