Sunday, March 07, 2010

Open Access Plus

The Fourth Rail of the Digital Revolution in Legal Materials

Much good work is being done to insure that as the internet develops and digital information becomes the norm, it remains freely accessible to all citizens. After all, how can citizens participate in their government if they can't have access to their own laws? Efforts by AALL, and NCCUSL and others are focused primarily on making sure that all government and primary legal materials are free, reliable and that they are authentic. Again, how can citizens participate in their government if cost limits their access and they can't be assured that what they are accessing is the real thing?, NCCUSL and AALL's Washington Affairs Office are working hard on all fronts, known collectively as "access, authentication and preservation."

I want to discuss the all but overlooked aspect of the digital revolution in legal materials: meaningful access to the the law. If we think of access, authentication and preservation as three legs upon which the ideals of "open access" stand, meaningful access as described below would constitute the fourth leg of the equation, without which all the access in the world may not be enough to truly address the needs of American citizens.

We librarians know good and well that the key to efficient, effective legal research is not finding cases and statutes. Rather, a skilled researcher knows which tools lead you to the right statutes and cases, and, preferably, especially if you're new to the subject, tools that also explain what is the 'law' of that subject. In this context, the 'law' is not merely a rule, but, a series of calculations and interpretations about what all the cases and statutes (and politicians and society in general?) say, and standards of practice or behavior that result, about the subject.

The debate, therefore, about free, unfettered access to primary legal materials is, therefore, something of a red herring. Access to the primary law is really secondary if the goal is to give citizens free, unfettered access to the 'law.' In this context, practical knowledge of the law can be described as the ability to predict outcomes of law suits, relational expectations or legal proceedings. This knowledge causes people to live and pursue livelihoods in accordance with legal standards.

As the body of primary legal materials grows and access to it spreads, what will be the result? Will citizens actually be better able to understand the law without access to the scholarship, analysis and the sophisticated objective finding tools of legal research?

In addition to advocating the free, unfettered access to primary laws, perhaps we should also focus our efforts toward using new technology to develop new finding tools and access to secondary materials.

I propose that the internet provides us with the means to create aggregated, federated meta-search engines that could mine legal scholarship and commentary found in emerging web-based resources such as digital commons, blogs, news and RSS feeds, Twitter feeds, podcasts, etc. We librarians are in a unique position to understand the "informatiosphere"; how it's structured, how to evaluate authenticity, authority and the 'new' provenance. There are many ways that search engines and search algorithms may be designed to provide access to new, free materials that make access to the law more useful, and, contrary to the prevailing commercial model, encourages the development of more free materials.

And herein lies the rub. in the coming 'digital age', one of its byproducts is the ability of commercial publishers to closely regulate access to various information sources. Commercial legal publishers' products rarely have value exclusively in the publication of primary legal materials. The value that commercial legal publishers offer lawyers and lay people interested in learning about he law lies in their secondary materials and finding tools. As open free access to primary materials becomes the norm, legal publishers will likely tighten the circle around their proprietary commercial products. As their income declines from the sale of primary materials, which most also publish in addition to secondary resources, these corporations will make up the difference by increasing the prices of finding tools, treatises, form books, looseleaf reporters, etc. As the print versions of these secondary resrouces disappear from library shelves, access to them by lay people will be all but blocked because most cannot afford access to online products produced by the major legal publishers.

When efforts to make access to primary legal materials free succeeds, it is possible that only legal professionals will have access to commercially produced finding tools and secondary materials. As described earlier, these may actually be the most important materials to which people interested in learning the law must have access in order to equip them to make reasoned, legal decisions about their lives and livelihoods.

Should this come to pass, if we fail to provide to ordinary citizens access to some form of secondary materials that help them find and understand the law, our success in providing them with free, unfettered access to primary materials may, in the end be a pyrrhic victory.