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, PublicResource.org 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? Law.gov, 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.

Some Issues Answered: West Explains and Raises questions....

3 Geeks and a Law Blog: WestlawNext - Some Issues Answered published an email that Anne Ellis, Senior Director, Librarian Relations, at West, distributed to many AALL listservs this week.

Just beneath the surface of all the hub-bub surrounding the roll-out of WestlawNext (WLN), is an unanswered question regarding the structure and nature of the new search engine. West doesn't seem to be very forthcoming about what it is other than to say that it is more than just a new interface on the same old product. It is, apparently more that simply new window dressing on WIN. It is also more than simply taking searches, analyzing them and then searching through West's vast universe of secondary materials. There is an aspect of the searching process (dare we call it "algorithm"?), apparently, where the users themselves actually contribute to the ranking/value of specific documents in Westlaw's database, be they primary or secondary law.

Indeed. This is essentially how Google has built it's search engine hegemony. Essentially, users "vote" for results with their clicks. (Of course Google makes money by selling votes to businesses that want to be top of any search list. The ramifications for law makes one think of a Grisham novel....) Is this really what WLN is all about? Is crowd-sourcing the law really good for the law? For researchers?

I wonder.

Why I'm Signing the Durham Statement

[I wrote this the day after hosting a podcast with Professors Richard Danner and John Palfrey, authors and architects of the Durham Statement. The podcast can be found on iTunes, here. The transcript of the chat room can be found here. RL]

[In a curious irony, when I logged onto the website to "sign" the statement, I got a 404 error.... Uh, I guess the gods do have a sense of humor! RL]

OK, I'm convinced. I'm going to sign the Durham Statement. But with an asterisk. Here's why.

I fully support all the goals and objectives of 'the open access' movement. I believe that it is critical that as more legal materials are born digital, librarians should be working with content creators (governments, authors, academics, publishers, bloggers, etc.) to be sure that digital information is produced and preserved in systematic, efficient and stable formats. There's a need for that format to be simple, objective and thorough so that software and hardware developers can easily develop applications and search engines that make the material not just accessible, but usable, useful. And, perhaps most important, the formats must be open so that they can be used by developers (of search engines, readers, aggregators, or who knows what kind of tool) for any platform, while at the same time remaining strictly controlled and loyal to established standards. Standards must take into account not only the data itself but its metadata and as well as format.

The desire for an end of print materials is not what's driving the growth in the availability of digital legal information. What's driving its growth are technological developments. Better html, java and Ajax web development tools have made web pages more hospitable for users and developers, and, as a result, more useful for finding, accessing and using information and documents retrieved. Better processing power, bandwidth and storage capacities have made the development and distribution of databases practical, both on the server and user sides. Looking back at history, consumers of legal information have never simply stopped using one format to await the arrival of the next. Any new format must prove itself before it will become the new standard. The same will occur as legal materials transition from print to digital formats. (The question of whether this transition will be total or partial, or somewhere in between - my choice - is beyond the scope of this essay.)

There's also a practical reason for my reservation about the "end of print" declaration in the Statement. By declaring 'the end of print' as an end in itself, I am afraid that it gives too much encouragement to publishers and information creators to put the cart before the horse, and cease printing material before reliable online alternative formats are fully developed. This could lead to disaster in two ways. First, they may move too quickly and develop online tools using new, unproven technologies that may end up making access to the material more difficult than before without refinements and upgrades. And then there's the danger that all early adopters risk: adopting formats that don't survive in the marketplace and may be lost forever.

This is why I object to the language in the Durham Statement that calls for "an end of print publication" of law reviews. In my mind the call is unnecessary, even vacuous. If the printing of law reviews is doomed, it will happen only when there are acceptable substitutes. And not a second sooner.

I'm signing the Statement with the above reservations, and whole-heartedly support it's underlying goals and objectives, (I support AALL, NCCUSL, LIPA and Law.gov, too), the call for the development of rigorous standards for materials that are born digital. I also like the idea that legal scholarship be included in the open access movement. There's great potential to create a fascinating, organic living encyclopedia of legal scholarship.

The Year In Law Libraries

The panel had some good comments on the year's biggest developments. And predictions.... the predictions are available in the chat room transcript, which you can find by clicking here.

I'll post more information about the show later.

Exciting Times are Coming: Check out Law.gov

It's rare that the buzz in the air is equal to the reality. I think that we're finally approaching a critical mass in activity to bring the movement to preserve, protect and distribute state primary materials to fruition that something may actually come of it. In addition to Carl Malamud's law.gov effort, LIPA, the Chesapeake Project, AALL's Authentication & Preservation of Digital Law Special Committee, and NCCUSL's State Electronic Legal Materials Committee, other initiatives are developing which, if coordinated, can actually help the nations law libraries breath easier, by freeing us of the necessity of having to pay for reliable primary materials.

West, Lexis, BNA, CCH and others should breath easy about these developments, too. What they have is more valuable than the primary law. Secondary materials are the things that help lawyers, researchers and scholars make sense of what the law is, and that's at least as important as having access to the law itself. Law publishers should be prepared for a major shift in their business plans: sale of primary materials is going to begin to shrink, and they're going to have to realize that their income is probably going to shrink some, too. But their sale of secondary materials should remain stable, even grow in importance and value as access to primary materials proliferate. [Note to commercial publishers: focus on the unique things that you bring to the table, scholarship, indexing, commentary, practice aids, etc., and forget about trying to convince people that your work dressing up free materials in fancy bindings is worth as much. It's not. It's nice, but let's face it, the Federal Reporter isn't worth nearly as much to researchers as Wright and Miller or the Key Number system!]

That is, unless the publishers continue their frightening practice of inflating prices of all their materials to such an extent that makes secondary materials virtually unaffordable altogether for libraries to purchase, update and hold. The present practice is for publishers to inflate the prices on print and secondary materials to make up for declining sales. As prices go up and libraries' revenues go down, law libraries can't afford any materials from big publishers; primary or secondary. In that case, we all loose.

Here comes the dawn....

AALL "Blawg" Gets It Right - Mostly

While anyone can look back through writings of various technology naysayers and cautionary pundits of the past (including yours truly) and find warnings about how the rapid (and thoughtless, apparently) wholesale adoption of technology for publication of legal information, it's turning out to be much more complicated than that.

Simply taking snapshots of Agency websites won't capture the important information that we're loosing. In fact, it captures more useless stuff than valuable. After all, who needs to know how, say, the Immigration Office coded their homepage? The important stuff is what's at the other end of the links, the data. Knowing that a link to a report was present in an agency page isn't as important as the report itself. If that only exists as an html or other form of e-document and it's wiped out, who cares about the link?

As I've said a zillion times before, all important government information should be in e-format only as a secondary, back-up format. The primary format of everything that's important should be in print.

All e-formats, by their natures are ephemeral. Until that conundrum is solved, "preservation of electronic material" is an oxymoron.