Give Open a Chance in Law

Imagine, if you will, a Venn Diagram. One circle is the unholy mess that is the current state of legal education. One is the systematic failures surrounding issues of Access to Justice. And the third circle is the Reinvent/Innovate/New Law world of individuals attempting to make the practice of law more efficient using technological solutions. What lies smack in the center of these circles?

Legal information.

Yes, legal information. It’s one of the major tools of legal practice and scholarship, but for some reason is relegated to a bare minimum in law school curricula and is increasingly downsized and outsourced in the practice world. The ReInnovateNewLaw crowd is starting to produce some legal info start-ups, but very few of those are doing anything beyond putting lipstick on a pig.

Before we get to far, I want to assure you that this blog post isn’t going to be one of those “let me tell you why libraries are relevant and why you need librarians” posts. They are and you do, but I’m getting to the point where I think that if librarians aren’t showing you that by their actions, then all the blog posts in the world don’t matter. And there’s only so much librarians can do to change things without the participation of the lawyers and professors that they support. Just so we’re all on the same page, here’s what I mean by “legal information”:

  • Primary law
  • Scholarship produced by the legal academe
  • Treatises, form books and other practice materials
  • Tools that analyze or manipulate the above and deliver them to you

Aside from the the analytical tools and delivery mechanisms, the above are public domain materials, information paid for at least once (although sometimes more) or generated by the community for the community. What if I told you that all of them could be open and maybe even should be open? What would that do to the ReInventNewLaw, Access to Justice and Legal Education worlds?

Another definition break. What does Open mean anyway? Let’s start with what it doesn’t mean. It doesn’t mean that content creators lose their copyrights. It doesn’t mean you can’t make money off of it. It doesn’t mean that there’s no editorial control or quality assurances.

Open means the material or tool is unencumbered by legal and physical traits that inhibit its use by others. That’s it. It sounds simple, but if it were, I’d be out of topics to talk to people about at cocktail parties.

Come to think about it, I haven’t been invited to a cocktail party in a long time. Hmmm…

Anyway, let’s plow through the list, shall we?

Primary law. No brainer, right? Created by government bodies, paid for by tax payers, the fundamental building block of our society… you know, The Law. Should be free and open, right? Well, keep dreaming. As it stands, it’s locked away by the corporations that governments have outsourced their publication duties to, assertions of copyright by the governments themselves, and really terrible format and publication choices when governments do publish their law. As for that last bit, I don’t want to get too nerdy or lost in the librarian weeds here, but metadata is your friend. It’s not magic elves that deliver a search result to you, it’s algorithms analyzing metadata and other characteristics of a piece of information.

If you have ready access to a legal research tool like Westlaw, Fastcase or...even a library full of print books (a quickly disappearing tool for the majority of the public), you can forget how hard it is to access the law without them. Allow me to go back to my former life as a Law Professor and tell you to try it. Take whatever jurisdiction you are in and find the law governing dog bites using free government sources at first, then add in other “free” websites. Get the statutes, case law and, as I always had to remind my students, don’t forget to Shepardiiiii *cough* I mean use a citator to check for currency.

It’s a bit of a trick question as there currently exists, to my knowledge, no comprehensive free citator. But barring the fact that you are unable to confirm that your law is up-to-date , how much fun was that? Now imagine you’re Joe and Jane Q Public, your average middle class couple who don’t want to decide between making their car payment that month or getting the advice of an attorney.

I could make up sympathetic straw men all day who would benefit greatly from open and free access to the primary law. But you know who else would? You. That’s right. Mr. or Ms. Practicing Attorney or Law Professor. Because once we have open law, we have the building blocks and raw material to make some really cool stuff.

Legal Scholarship. People like to kick around legal scholarship for its esoteric topics and limited use by the judiciary and practice world. And when I say “people” I mean the Twitter yesterday, “Given the publishing standards of most law reviews, legal scholarship is basically jurisprudential fan fiction wrapped in academic finery.” “Oh!” but you say, “I have the #3 SSRN, download in my topic area!” I love it when law professors crow about their SSRN download numbers like it’s a valuable metric. It’s adorable. Aside from the fact that it is easy to game these numbers, download counts are applying an objective metric to something that is of inherently subjective quality. Metrics providing an insight into value are possible, but they need to take more into account than raw download numbers, such as citations (who, how, and where) and social media use.

Once again, however, we run into the Closed Ecosystem and paywall roadblock. As a former academic librarian with collection budget worries constantly hanging overhead, this is where things get especially aggravating. (And before you ask, I am not saying that all of the following are universal, but I have either witness the policy first hand or have had them confirmed by a faculty member.) Let’s accept the idea that an integral part of a faculty member’s duties is performing scholarship. Okay. We all have job duties for which we are paid a salary.

And they get a book purchasing stipend. I mean, there’s a library in the same building, but, you know, we don’t have to buy pens or the computer on our desks, so I guess it makes sense.

Then professors can get “summer research money.” Oh. Well, maybe it’s all going to hire student research assistants. It may be a good learning experience because Lord knows we don’t bother to give Legal Research and Writing (or its instructors) any actual importance any other time.

Then, upon publication, Deans can hand out a publication bonus of several thousand dollars. Mmmmmmm

After the article is published, the library buys print copies, plus access to at least three separate databases so that the school’s community can access it, databases becoming so expensive that choices about print acquisitions are becoming increasingly difficult. OH COME ON!

It’s bad enough that this article has been paid for by the school (and by school, I mean student tuition dollars) several times throughout its publication process, but somewhere along the way the author likely signed away their copyright to the work, so at best the school’s return on its investment is the right to lease access to this article for as long as the money holds out. “But Sarah!” you’re saying, “I dutifully post on SSRN and the journals are on the web!” Well, bless your hearts. That still doesn’t solve the copyright issue and the fact that the copyright owner can order a take down of THEIR work. It also prevents a technologically savvy type from downloading the articles and analyzing the data contained within to create usable tools such as citation analysis and publish a searching collection of legal scholarship. And have you looked at law journal websites? They are a mess. PDFs, dodgy searching, no metadata or indexing, ever changing URLs and limited back catalog.

If this is how the academe treats its Crown Jewels, I hate to see how they treat the things they think are beneath them.

Oh wait, never mind, I know a lot of law librarians, IT staffs and clinicians. *zing*

And let’s talk about the publish or perish mentality and use of publications as tenure criteria. It’s entirely possible that I missed it, but I checked the ABA Standards (created by a section made up mainly of academics) and there was no mention of having to publish two articles and a book within the first five years of being a professor. And these faceless tenure committees who we live in constant fear of are made up of…law professors at every institution. You know….it’s almost if the legal academe is in control of itself and could stop the publication madness anytime it wanted to. Oh, and by the way, the English professor with twice the graduate education, twice the teaching load and navigates a peer-reviewed scholarship ecosystem at half to one-third of the salary would like a word with you. Open Access Scholarly publishing won’t cure the publish or perish problem, but tenure committees could stop treating an article that has had its citations checked and blue-booked by a second year law student as somehow more valuable than an article published under a creative commons license on the institutions scholarly repository.

Practice Materials. As with Primary Law, up until about 20 years ago, traditional print publishing was the only way transmit legal information. The information consumer paid the publisher for three things: (1) The information (for which they paid an author) (2) The transmittal of this information from the author to consumer, via a print publication. (3) Some sort of quality control and editorial processes over the product. This worked out pretty well for about a hundred years. Then the publishers got greedy. (Possibly because there ain’t too many of them around any more.) They are taking away the ability to own information purchased (you’re just leasing access on Westlaw, darling, you don’t own anything) and increasing costs at an unsustainable rate.

Fortunately, publishers are no longer needed to print out information to transmit it to a wider audience. The Internet and easy post-web2.0 open-source Internet publishing tools make getting information up and out very easy. “But…but..but….won’t anyone think of the quality control????” I’ve got one word for you. Rudovsky. And another. Contractors. As with our law student law journal editors, can we as a community stop pretending that a commercial publisher label is an automatic guarantee of quality? I don’t remember much from my 7th Grade home economics class, but I do remember this: store brand and name brand food products are usually the exact same thing, made at the same factory just with a different label. It looks like the same can now be said of some of our practice materials.

Going open won’t change fact that authors like the prestige of publishing with a major publisher (or the paycheck). Not being privey to any author contracts, I do wonder how the pay compares to what that author’s firm library pays to annually access that title over the life of it and if it might make economic sense for BigLaw to encourage their associates to write and make practice information available and cut out the publisher middleman. But I am just a [humble librarian], don’t ask me [about] microeconomic theory.

Tools and Delivery. I covered this topic in a earlier post, but basically my point is this: all the raw information in the world ain’t worth a bucket of spit if you have to rely on a commercial vendor product to retrieve, use and analyze it.

Can Open Law, Open Access and Open Source save Legal Education, solve Access to Justice and bring legal practice into the 21st century? Not entirely. But it can help.

Editor's Note: This article is republished with permission of the author and was originally published on her site, SarahGlassmeyer(dot)com.