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In this podcast, we talk to Carl Malamud about public access to law and how it is threatened. We discuss how lawyers benefit from public access to law and how they can help increase it.

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Carl Malamud

From Wikipedia:

Carl Malamud (born 1959) is an American technologist, author, and public domain advocate, known for his foundation Public.Resource.Org. He founded the Internet Multicasting Service. During his time with this group, he was responsible for developing the first Internet radio station, for putting the U.S. Securities and Exchange Commission’s EDGAR database on-line, and for creating the Internet 1996 World Exposition.

Malamud is the author of eight books, including Exploring the Internet and A World’s Fair. He was a visiting professor at the MIT Media Laboratory and is the former chairman of the Internet Software Consortium. He also is the co-founder of Invisible Worlds, was a fellow at the Center for American Progress, and was a board member of the non-profit Mozilla Foundation.

You can follow Carl on Twitter and LinkedIn.

Image (CC BY 2.0).

Thanks to Ruby Receptionists, Spotlight Branding, and FreshBooks for sponsoring this episode!

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Transcript

Voiceover: Welcome to the Lawyerist podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. Now here are Sam and Aaron.

Sam Glover: Hi, I’m Sam Glover.

Aaron Street: And I’m Aaron Street, and this is Episode 125 of the Lawyerist podcast, part of the Legal Talk Network. Today, we’re talking with Carl Malamud about public access to the law.

Sam Glover: Today’s podcast is sponsored by FreshBooks, which is ridiculously easy to use and packed with powerful features. Try it now at freshbooks.com/lawyerist and enter Lawyerist in the ‘How Did You Hear About Us?’ Section.

Aaron Street: Today’s podcast is sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk-free trial with Ruby.

Sam Glover: Today’s podcast is sponsored by Spotlight Branding, which wants you to know that having a new website designed for your law firm doesn’t have to suck. Spotlight Branding prides itself on great communication, meeting deadlines, and getting results. Text the word ‘website’ to 66866 in order to receive a free website appraisal worksheet.

Aaron Street: So for the last few episodes, we’ve either promised or threatened, depending on your perspective, to record a podcast intro from a roller coaster at the Mall of America during our presentation at the Minnesota State Bar Association’s Annual Convention, so here that is.

Sam Glover: Oh, my God! We’re on a roller coaster. Hey, Aaron, you know what this reminds me of?

Aaron Street: What’s that, Sam?

Sam Glover: Starting a law firm.

Aaron Street: I get it. Hey Sam! You know what’s bullshit?

Sam Glover: What?

Aaron Street: Woooo! The fact that states can have exclusive licenses for the law.

Sam Glover: That’s total bullshit! Ooh, spooky! We need like a GoPro so we can first-person record the whole thing.

Aaron Street: Yeah, just like wear it on our heads.

Sam Glover: I totally want one of those. Uh-oh, another hill!

Aaron Street: And now, here’s my conversation with Carl.

Carl Malamud: Hi! My name’s Carl Malamud. I run Public Resource. We’re a nonprofit organization located in California. I’m not a lawyer, but I spend an awful lot of time with the law, and I guess I play a lawyer on the internet, so that’s who I am.

Sam Glover: Very cool. Thank you so much for being with us, Carl. I have been a fan of yours for a very long time for the work that you’re doing, and I’m so thrilled to finally have you on the podcast.

Carl Malamud: Thank you for inviting me.

Sam Glover: You told me that we should call it public.resource.org once. That is both the website and the name and, from now on in this podcast, we’ll just refer to it as Public Resource, so what is it?

Carl Malamud: Public Resource is a nonprofit that I started in 2007. The initial aim was to make access to government information more readily available, and that was a pretty broad aim. It’s based on work I’ve done for the last 30 years. I helped put the SEC EDGAR database online and the U.S. Patent database. What I found, though, is after I started Public Resource, there was one big gap out there. The internet revolution had already hit the financial industry, it hit the medical industry, but it had not hit the legal industry, so I decided I would focus much of my efforts, although not all of it, on making the law more accessible.

Sam Glover: That has been surprisingly controversial.

Carl Malamud: It’s harder than you would’ve thought. It’s something I didn’t tackle in the ’90s because I thought it would be too hard. That’s why I focused on easy things like the Patent database but, in 2007, I decided we really needed to do something, and there’s been people working on making the law available. By available, I don’t just mean to citizens and the public, I mean available to lawyers and government officials and people that work with the law. There’s been people out there for a long time working on that.

There’s Tom Bruce and Peter Martin at Cornell LII, and they run the definitive version of the U.S. Code. They’ve got the Code of Federal Regulations. There’s people like Tim Stanley of Justia and Ed Walters of Fastcase that have devoted literally decades to trying to make the law available, so I’m not the only one doing this but, in 2007, I decided I would roll up my sleeves and see if I could pitch in.

Sam Glover: I try to talk about public access and open access to law and, whenever I bring this up with lawyers, I feel like I often get kind of blank stares. What’s behind those blank stares is usually like, “We’ve had access to Westlaw forever. I don’t even understand. Of course, we have access to law. What’s the problem?” What is the problem?

Carl Malamud: I’ll tell you a problem for lawyers, for example. This is a situation I have in the great state of Georgia. There is only one vendor that has the official law of Georgia, known as the Official Code of Georgia Annotated, and that is Lexis so, if you happen to be a West user and you need to do Georgia law and you want the real official version, not an unofficial compilation, you have to go subscribe to Lexis. The idea that the official law of the state of Georgia is not widely available in Westlaw, in Bloomberg, but also on the internet for the citizens of Georgia is absolutely nuts.

Sam Glover: So Westlaw has a version of it, but it’s not … You can’t cite to it.

Carl Malamud: They don’t have the Official Code of Georgia Annotated. They have the unofficial compilation. You know what Section 111 of the Official Code of Georgia Annotated says? In the annotations, it says, “You shall consult unofficial compilations at your peril.”

Sam Glover: That sounds awesome. I guess Georgia is actually the subject of an active lawsuit, if I’m not mistaken, right?

Carl Malamud: Oh, my! Is it ever? They accused me of terrorism in their complaint. The U.S. District Court …

Sam Glover: Wait a second. Really? Terrorism?

Carl Malamud: Yes, you can go read the complaint. They accused me of having a practice of terrorism. They were quoting a book I wrote in 1993 called Exploring the Internet in which I made a passing reference in a very joking context about making standards available, but they put that in their complaint. We objected, obviously. We thought that that was, I think the lawyer said “gratuitous and bizarre” as far as an accusation, but they doubled down on it.

We were sued because I put the Official Code of Georgia Annotated on the internet. They claim that the law itself, the statutes, were not copyright, but the Annotations were. My problem was, there is only one official law. Every bill in the Georgia legislature begins with the words “An act to amend the Official Code of Georgia Annotated.” As you know, codifications fix errors in statutes, so you can’t necessarily rely just on the statutes. You really want the codified version of the law, particularly since it’s the only official version but, yeah, they sued us.

We lost in the District Court level. The judge ruled that we had violated the copyright of the state, did not buy our arguments that these are edicts of government and that edicts of government do not have copyright in the United States, so we are now appealing to the 11th Circuit. We have filed our appeal.

We had some really beautiful amicus briefs come in. There was one from the American Libraries Association, and 41 law librarians and a whole bunch of others. There was a second one from the ACLU and the Southern Poverty Law Center and, again, others, and then there was one that the Stanford Law Clinic did on behalf of young, innovative startups like Ravel and Casetext and the Free Law Foundation, nonprofit. Those are the three amicus briefs that were submitted on our behalf. We’re now waiting on the state to file their answer and their amicus briefs.

Sam Glover: If you went to law school in the Westlaw era, we’ve all seen that notice on every single page of every single printout, which is “Westlaw Thomson, whatever does not claim copyright in the body of the case.” They only claim copyright in the annotations and the headnotes and things like that but, yeah, it seems like if there is only one copy and you have to pay for it, it doesn’t really matter …

That seems like quibbling that you can’t get it for free basically. The problem is, you’re responsible for the laws even if you haven’t read them, but you need to have access to them to be able to find out what you’re entitled to do. That’s pretty much bedrock here, right?

Carl Malamud: Yep. The Georgia suit says that they focused on the judicial summaries, which is one form of annotation. The Lexis goes out and summarizes a bunch of court cases. They do it as work for hire. They do it for the state of Georgia, which applies copyright, but the state of Georgia applies copyright to many different components of the Official Code of Georgia Annotated, not just to judicial summaries.

It applies copyright to the catch lines and the Code Commission Annotations, guidance from the Code Commission, guidance from the Attorney General, historical references, cross-references, so you’ll be going through the code, and there’ll be a little notation down there that says, “You know what? We didn’t put this law in this section. It’s over there.” If you don’t have the annotations, you don’t know that they decided to codify this particular part of, let’s say, education law over in another title.

You could obviously leaf through all 40 volumes and go find what you’re looking for, but my point is that the annotations are an emanation of the state. They are the guidance of the state of Georgia for their official law, and that official law needs to be available to the public, and it is not. You can’t depend on one vendor to do everything for you.

The state’s response was, “Hey, we have an unannotated website online. What’s your problem? Any citizen can go read that,” but it’s a really bad site. It’s awful, and it’s got onerous terms of service. If you’re a Georgia citizen wanting to read this unofficial, un-annotated version of the laws of Georgia, you have to accept terms of use saying if there’s any dispute, you agree to New York jurisdiction because that’s what Lexis has in their standard terms. It also says that you will not copy this material for any commercial purpose whatsoever.

Basically, it’s an unusable site, and that’s the problem when one vendor has a monopoly on the law. We lose public access, and our democracy is based on the concept of an informed citizenry, but we also lose innovation in the legal profession. You know what this goes back to? There was a guy named John West who started Westlaw, and it was because there was no copyright in the court opinions that John West was able to put together the National Reporter System.

Sam Glover: Which isn’t even a little bit ironic.

Carl Malamud: He couldn’t have done that otherwise if there had been copyright and different state court opinions or other materials. You wouldn’t have had West. You wouldn’t have had this beautiful National Reporter System that served us so well for 100 years and, because there are now vendors that are asserting monopolies over portions of the law, either on their own behalf or on behalf of a governmental entity, that has retarded innovation in the legal profession, and it’s hurt our ability to carry out legal tasks and to conduct justice in a way that makes sense for our modern world.

Sam Glover: For the readers, we had Ed Walters and Sarah Glassmeyer on together a while back to talk about this, that data, public access to law. Public laws are data, and you can’t put that fuel in the car. That’s what oil is. Public access to law is like mining the oil, and you can’t make your car go without it, and you can’t have all of these innovative approaches to law.

You’ve mentioned a few of them, but look at the amazingly innovative ways that Ross and Casetext and Ravel and Judicata are analyzing cases and coming up with different ways to present them. You can’t do that if people can’t get law. Right now, all of that stuff means that you have to spend money on it. I think Ed Walters said they spend just a massive amount of their personnel power there at Fastcase just trying to drag the law, kicking and screaming out of the various states.

Carl Malamud: It’s even worse than that. Ed is on my Board of Directors, and I’m very pleased that he’s on our board. Fastcase is the official provider of case law to the State Bar of Georgia. If you’re a member of the state bar, that’s one of the benefits you get. You get access to Fastcase. Fastcase does not have a copy of the Official Code of Georgia Annotated, and there is a declaration in our lawsuit at the District Court level from Ed Walter, and it says, “We were unable to license a copy of the Official Code of Georgia at any price.” The state and Lexis simply refused to let them have it.

Sam Glover: They want their monopoly. They like it.

Carl Malamud: Yeah, they claim that it’s allowable and that if they don’t give Lexis an exclusive right to sell that portion of the law, it would somehow cost the state millions of dollars, and there would be all these bad effects. I just don’t buy it. I don’t buy it. The law is just too fundamentally important in a democracy like ours to make it subject to a license agreement from a private party because that’s what we’re saying here. It’s not even that it costs money to read it. It’s that you may not speak the law without a license, and that’s un-American.

Sam Glover: I imagine while we’ve been talking, people have been typing in public.resource.org and getting to the site and then wondering what to do with it. Is that website mostly just sort of a repository, or an archive, of the law that you’ve managed to document or is there some way it’s meant to be used?

Carl Malamud: There’s a couple of places you can go. You can go to law.resource.org, and that is our repository, and that’s got a bunch of stuff. We’re not an end user site. Google does index us intensively, so if you search for some of the stuff we have, it comes up in Google, you click, and there you are, but we’re not there to compete, as it were, with Lexis and West. We’re there to make a point, and we’re there to make bulk data available to others.

What happened in 2008, Larry Lessig and I spent $600,000 buying all the Court of Appeals documents, and we put them online. It was available in a nice HTML fashion. We made them as good as we could but, what really happened is, other organizations started taking those court opinions. It was all the Court of Appeals in the Supreme Court, and they started building it into the Free Law Project, and Justia took them, and others took them.

At the end of the day, we think all this information should become available from the state. There is absolutely no reason why the U.S. Government, for example, shouldn’t be publishing all its court opinions in a clueful fashion that permits bulk download, so it is data so that beneficial uses like looking for privacy violations inside of District Court cases, for example, become possible. At 10 cents a page, you can’t audit District Court opinions for an entire district looking for Social Security numbers because you can’t afford to do it. It’s just not possible.

Sam Glover: We need to take a quick break to hear from our sponsors and, when we come back, I want to follow up on that thing you just said about privacy violations in District Court opinions.

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Sam Glover: Okay, we’re back. You just sort of dropped that out there, and I think it’s really interesting because Pacer has been around for a while now, and it’s terrible, but electronic filing is spreading and more and more state courts are doing electronic filing. What were discovering is essentially that nobody understands how to redact documents properly. That private information is really problematic, and I think you were one of the people who helped bring that to light. Am I right about that?

Carl Malamud: Yeah, we had started a program for recycling Pacer documents to make them publicly available. My friend, Aaron Swartz, downloaded about 20 million pages of documents, and I did an intensive audit of those documents and found tens of thousands of Social Security numbers, names of confidential informants, Social Security numbers of police officers. It just went on and on.

I typed that audit up and sent it to 32 Chief Judges of District Courts and to the Judicial Conference. There was some moderate increase in privacy. After that, the Judicial Conference imposed some new rules. You know that little check mark when you enter Pacer that says, “I understand my redaction.”

Sam Glover: You have to swear that you’ve done it?

Carl Malamud: Yeah, that was my fault, but we’re not doing it well enough. One of the points I tried to make to the 9th Circuit of U.S. Court of Appeals when I asked them to give me all of one district was that, by having access to all the data, I would be able to go in and, much more quickly, find all those privacy violations and assist the courts in fixing the problems and in raising awareness so that, when a lawyer submits a document that’s got 40 pages of home addresses of school children with their Social Security number. This is not a theoretical example. It’s a real one.

I would think that the judge hauls that attorney up, threatens him with disbarment, and fines him heavily and make sure that that data gets redacted. It’s only when the data sees the light of day that you’re able to begin going in there and fixing the privacy problems. If it’s only lawyers and credit card fees that have access to Pacer because they got enough money, it doesn’t get fixed.

It’s this security by obscurity issue. It’s a lesson I learned when I put the IRS Form 990s online. I found a lot of Social Security numbers, like half a million, in there and went through a long, intensive campaign that finally resulted in the IRS changing their privacy rules and beginning to proactively redact data. It’s only when the public has access. What I found when I put the Court of Appeals opinions’ online, there were a lot of Social Security numbers in there, and you’d think somebody would’ve noticed that, but I put them online and they hit Google.

I started getting calls from people saying, “You have my Social Security number online.” It didn’t even occur to me when I first put that data online that that would be an issue, so I immediately went through and scrubbed it. It wasn’t that hard to do. It was all ACML, Social Security numbers or nine numbers in a row with an optional hyphen in between them, and I was able to get all those removed. This is data that had been out there forever, and nobody had even bothered to do anything about it.

Sam Glover: I suppose on the one side, people say, “Oh, you can’t put that stuff out there because of all the privacy risks” but, on the other hand, it is supposed to be public and, until it is, those risks aren’t real, so there’s very little incentive for anybody to do anything about it. I hear people talking about this, and everybody seems pretty, “Yeah, you know, it’s a problem. We’ll get to it.”

Carl Malamud: No, we can get to it now. This is not something that we need to forestall forever. It shouldn’t be outside individuals like me. It’s okay that I do those audits but, when I addressed the 9th Circuit, Judge Kozinski honored me with allowing me to present to the business meeting of the court, so all the judges were there. I told them I thought privacy was their problem, not mine. I should not be the one that was making ethical choices on behalf of the judiciary. Either it’s public or it isn’t public. If it isn’t public, it shouldn’t be available on West and Lexis and Pacer. It shouldn’t be public, period.

If Social Security numbers aren’t supposed to be in there, then saying, “Well, that’s why we don’t put in on Google” is nuts because a transparent judiciary is just absolutely key to the functioning of our democracy, and a transparent judiciary is absolutely key to the mechanics of our legal system. If you are a government official, if you are a member of the bar and you are attempting to walk your cases through and argue based on the law, the idea that we don’t have our laws available in a way that makes sense is just absolutely nuts in this day and age.

There’s just no excuse for not having significantly better repositories at the state and federal levels that begin with the government, at which point any one of the private vendors can take that stuff and do something with it, but it shouldn’t be something where we say, “Gee, it’s going to be one vendor that’s going to solve all our problems for us.” The law is public, and it needs to be available for everybody.

Sam Glover: You mentioned John West, for example. One of the reasons that I think maybe why we are where we are is that making the law public used to be a pretty simple matter. John West comes up to you, and he says, “Look, I know publishing your laws is really hard. Why don’t you let me do it? I’ll be the official reporter. I’ll give you a copy back. You can put it in the law libraries around the state.” We’re good, right?

If people want the laws, they go to the library. I’m sure that’s still true, but I think what you’re suggesting is, “Look, things have changed. Let’s face it. Nobody ever went to the law libraries anyway unless they had a law license or were in prison. What’s the argument that like, that’s just not access anymore?

Carl Malamud: West was a man for his times, and he did a great job. In this day and age, there’s a couple reasons why that doesn’t make any sense. One is the internet. It used to be hard to print a book, and so it made sense that the book cost a hundred bucks. That just made a lot of sense in those times but, in this day and age, that’s not the case. Our laws have become much larger, much more voluminous, much more important to our daily lives.

The idea that only a lawyer needs to read the law is absolutely nuts. If you are a real estate agent, if you are a property owner, if you are a government official, if you are a school board president, all those people need to read at least some portion of the law.

There’s also another part of the law. I don’t know if we have time to talk about this …

Sam Glover: Absolutely.

Carl Malamud: … But there’s a part of the law that is totally private right now, and that is our most important laws. That’s our public safety laws, building codes, electrical codes, fire codes, safety of workers in factories, eye-protecting equipment, safety of hearing aids, these are all subject to standards that have been incorporated into law, and those laws are copyright. They cost a huge amount of money.

Sam Glover: What you just said is, so they’ve been incorporated in law, meaning there’s a statute that says essentially, “The law of this state is represented by the building code, and that’s incorporated into the statute, so you have to follow that if you want to be in compliance with the law.

Carl Malamud: It is incorporated by reference. It is part and parcel of the law. Sometimes, it’s simply incorporated. Sometimes, it’s copied and put into the statutes or the regulations, but usually it’s incorporated by reference, and it says, “IN order to conform with the playground safety standard of the Consumer Product Safety Commission, you must conform to the ASTM standard on playgrounds. That law is binding. It is part and parcel of the law. It has criminal penalties attached to it. Electrical codes certainly do, fire codes.

This is vital information, and it’s really expensive. Hundreds of dollars for some of these documents. I spent over $20,000 buying American Petroleum Institute standards for capping oil wells after the BP dump in the Gulf. These were $1,000 per document for a 50- or a 100- or a 200-page document. They were so expensive that watchdogs, like Greenpeace, couldn’t afford them. They’re not available in libraries because libraries can’t afford them.

That’s an area that I’ve done intensive work in. We have posted over 25,000 public safety standards required by law, and we have litigation pending in the District of Columbia U.S. Court of Appeals. We lost at the District Court level. The courts there said that the standards are, in fact, copyright, despite the fact they’re the law. We are in court in Germany where I had posted the European union-mandated safety standard for baby pacifiers. That case is also on appeal.

Sam Glover: Those are things, as a parent, you might want to know.

Carl Malamud: Not only that. It’s a standard you can read. One of the things people say is, “Oh, this is technical information. Don’t bother your pretty little head with it,” but when you read these standards, you look at them, and electrical code’s a good example. Any homeowner putting in a deck has to conform with the electrical code. It’s a readable document. It’s technical, but it’s not something that a citizen can’t understand.

We’re also in litigation in India, where we are the plaintiff in a public interest litigation suit with two Indian co-petitioners. We have posted all 19,000 Indian standards on the internet. Our attorneys there are a wonderful firm of Nishith Desai, but also [inaudible 00:29:27] who is the former Attorney General of the country is also representing us in the High Court of Dehli.

Sam Glover: Lawyers obviously want to … We’ve talked about reasons why lawyers should care. One is justice, but another is innovation. If you want there to be only legal research providers for the rest of time, or potentially three now that Fastcase has really joined the top then, by all means, ignore it. When you look at some of the amazing different ways that Judicata and Casetext are taking the same raw material and making it more useful by presenting it, analyzing it, parcing it, and then giving you different abilities to do things with it.

It’s truly amazing what you can do when you have more raw data, but the first question everybody asks is, “Well, can I get everything I need from it?” The answer is almost always, “No, not quite because we’re not Westlaw and we’re not Lexis, and we can’t get as much stuff.” If law.resource.org was able to just suck all of that data in, you would have many more options for rich legal research, just on the lawyer’s side of things.

Carl Malamud: Just imagine if the government printing office was emanating a certified, digitally fine, unique ID-based, cluefully formatted version of all statutes and opinions and regulations from the federal government, and they open-sourced their codes so that any state could run that same repository themselves. There is no reason we can’t be there. The technology is there.

There are a few shining examples. I helped the Obama administration on the initial revamp of the Federal Register. I didn’t do any of the actual heavy lifting. That was three volunteers out in california that went ahead and coded that, and it’s open-source software. If you’ve looked at the Federal Register in the last five or six years and compared that to 20 years ago, the online presence is dramatically better, just so much better, and we can do this.

Sam Glover: If lawyers want to support this, what are some ways they can do that? Number one, I’ll just say money. Give money to public resource. Give money to the Cornell LII. If you ever look up information there, you’re using it, just pay for it. What are some other organizations that lawyers ought to support if they can give money, but what are some other ways that lawyers can help further public access?

Carl Malamud: Money is a huge issue. You wouldn’t believe how immensely difficult it is to fund a nonprofit focused on making the law available because, when you go to a foundation and say, “Yeah, I want to put the Code of Federal Regulations online.” They say, “Why aren’t the lawyers paying for that?” I know my colleagues over at Cornell at the Free Law Project, all of them have a terribly difficult time. I went eight months last year without salary. I furloughed myself for two-thirds of the year because we simply didn’t have the cash. That’s one thing.

The other is, I am blessed at public resource in that we have nine of the leading law firms in the world working for us pro bono. We booked, in 2015, 3.8 million dollars in pro bono legal help. Last year was 1.8. I’m not happy with all this litigation in the sense of I’d rather not be in court because I think these are things that could be solved without litigation, but the reality of our modern life is that people that have a lot of money want to guard their money, so they sued us over these laws and standards we posted. Pro bono, doing work to help folks that are doing free law.

There’s little things you can do like supporting RECAP in your plugin on your browser so that when you get a …

Sam Glover: We haven’t said anything about that yet, so let’s let everybody know what it is and dispel some of the fud that the courts threw up for a long time.

Carl Malamud: I don’t know if we know the answer to Pacer. I think the right answer is that the government does a better job and just removes that stupid pay wall. Tom [inaudible 00:33:38] testified before Congress on that. There are some stop-gap measures, and one of them is a service called RECAP. RECAP is a plugin for either Chrome or Firefox.

The way it works, when you log in to Pacer and download a document, it takes that document and uploads it to the internet archives, so the next guy coming in gets it for free. You paid for it the first time, but then the next guy gets it for free. What happens is, on popular dockets, you will find that many of the dockets you need are actually available for free there. Again, that’s a stop-gap. The proper answer is …

Sam Glover: Are the courts still giving a warning about using RECAP?

Carl Malamud: I don’t know. There were warnings on the website about how this would introduce viruses or whatever and be careful. It was fud. It really was.

Sam Glover: The one-word answer is bullshit. You can use RECAP. It’s just fine. By doing so, you’re doing a small public service. It’s totally a good thing if you are regularly interacting with Pacer, go and get … Is it still at recapthelaw.org?

Carl Malamud: Yep, yep. No, it’s over there. You know, there’s other things you can do. If you’re a state lawyer, and you’re a member of your bar, your bar association should be pushing your state government to do a better job. Regulations, when we last looked, I think it was Sarah Glassmeyer and Erika Wayne was at Stanford at the time. I think 26 states had copyright assertions on their state regulations. There are a huge number of state courts that are under water that have an official vendor.

The California Code of Regulations is contracted out to Barclay’s West, which does a pretty good job, and they do have an online presence. It’s there, but it’s not like the raw data’s available in bulk to download. If it were, we got some pretty good law students with computer science undergrad.

If you give them this stuff, they take it and they turn it into a vastly better version, or they build a specialized site that pulls in the law in a particular domain, construction law for example, and just goes out and picks all the relevant portions of the law that you would need and build a site for construction.

Today, that’s very hard to do because you have to clear a title on the law. You got to go find the stuff, and it’s incredibly difficult to do. Being aware of the issue, making it an issue that you advocate for at the state bar level or if you remember, the American Bar Association, which I am. I’m not a lawyer, but I’m pleased to be an Associate Member.

Last year, the ABA passed a resolution saying that all standards incorporated by reference into the Code of Federal Regulations should be available for free on the internet, which was good. It didn’t go as far as I wanted, but it’s definitely a step forward. Beginning to advocate for better public policy on making this stuff available really matters. Also, just being aware that the law …

This is like medicine. It used to be that all medical information was simply there for the doctors. All of a sudden, a lot of it started showing up on the internet. A lot of doctors were like, “Oh, my God! These patients are going to come in and start talking about stuff.” A lot of doctors now like the fact that their patients can go Google their disease and inform themselves about it and begin asking intelligent questions about what’s going on. I would think that lawyers would want the people walking into their office having the ability to do a little bit of research. Maybe they come back in with a cockamamie theory, but …

Sam Glover: Every time.

Carl Malamud: … At least they’ve got a theory. You can then explain to them why they’re wrong and show them where, in the law, it’s different, but at least they’re coming in with a level of education. When you send them home and say, “No, no, no, no, no! You can’t discriminate against blacks at Airbnb,” for example. You can look up the law and look at it and say, “Oh, he’s right. That’s illegal.” Not only is it immoral, it’s illegal.

Sam Glover: Plus, if it were easier to put the law out there and to say things about it in public, maybe the theories would get a little less cockamamie.

Carl Malamud: Not only that. Maybe the laws would change. That’s the thing about government regulation. If you can’t read the regulations, you can’t explain to the government why they’re not good. If you think there’s too much regulation or if you think there’s not enough regulation, at the very least, you should agree that the regulations should be available for you to read.

Sam Glover: I hope our listeners will consider supporting the organizations that are pushing for open access to law or just advocating for it, and we’ll be sure to link to the RECAP extension, as well as law.research.org and public.resource.org in case you want to learn more.

Carl, thank you so much for being on the podcast today. It was great to have you, and keep up the great work.

Carl Malamud: Thank you, Sam. I really appreciate you having me on.

Aaron Street: Make sure to catch next week’s episode of the Lawyerist podcast. If you’d like more information about today’s show, please visit lawyerist.com/podcast or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found, both Lawyerist and the Legal Talk Network can be found on Twitter, Facebook, and LinkedIn, and you can download the free app from Legal Talk Network in Google Play or iTunes.

Carl Malamud: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by, Legal Talk Network.

Aaron Street: Nothing said during this podcast is legal advice.

One Comment

  1. Cesar Gomez says:

    And as I am listening to this podcast, the following article pops up in my LinkedIn feed. This is unreal.

    Attacks on secret informants spur federal courts to consider limiting PACER access
    POSTED JUN 20, 2017 12:05 PM CDT – ABA Journal

    “The federal judiciary is considering blocking public online access to criminal court records on PACER”

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