Obstacles to Open Access to Law #LVI2012
To some extent, the Law Via the Internet conference is a catalog of the difficulties involved in publishing the law, which are magnified when you do it digitally.
This is not such a problem in the US, where it is easy to find and learn to use free tools like WordPress to build websites. But imagine trying to build a database with a web-based front-end if you lived in Africa, without the sort of institutional technical knowledge even most Luddites in the US take for granted. And you have little or no money backing up your non-profit startup.
Some of those at the conference were lacking in basic know-how, which is a basic problem. Once you solve that, you have to figure out how to make sure people can actually use the law you publish.
When you have effectively infinite copies, how do you ensure that the copy you have is accurate one before you submit it to the court? Moreover, if you are submitting, say, an unpublished opinion with a declaration or in an appendix, in what format do you submit it so that the court can check its accuracy, too?
This is not solved merely by using established research services. The former SCOTUS reporter said he had a file full of evidence of errors from Westlaw and LexisNexis.
But even when we solve this problem, most courts expect to see citations to the establish reporters, which brings me to …
Public domain citation
Nearly all the citations in the briefs we file are proprietary, based on the reporter volumes published by private companies. Effectively, that makes it difficult to cite a case unless you have access to Westlaw or Lexis. Even Fastcase, which does an excellent job attaching citations to cases, has to wait for Westlaw or Lexis to publish the case so it can get the cite.
Putting law in the public domain where it belongs require a public domain system of citation that does not depend on third parties. This is long overdue. Getting the law into the world doesn’t count if you still need a private entity’s pricey directions in order to find it.
Publishing the law is ongoing. Westlaw, Lexis, and Fastcase scrape hundreds of websites daily for new cases, statutes, article, and so on. It is a daunting task, made more daunting by the fact that every jurisdiction is different. I get a headache just trying to add up all the different places I would have to go in order to get a full set of state, federal, and regulatory statutes and decisions.
Once you figure out how to do it (which is definitely not trivial), you can’t exactly set it on autopilot, because there will be errors, glitches, permalink structure changes, and worse. It’s hard work to keep going.
Once you solve all those problems, you can start worrying about things like crowdsourced headnotes and collaborative annotation.