Supreme Court by kconnors at Morguefile

Law Wants to Be Free

Or does it? The recent announcement first of developer access to a huge body of American jurisprudence and then of the Public Library of Law (PLOL) suggests that there continues to be an interest in having access to free case law. So it’s astonishing how this information remains hard for the average citizen to find.

In fact, the law doesn’t want to be free.  A legal researcher can not reasonably know all of the court opinions that might impact a particular legal issue.  There’s no question they can find the most important ones, as selected by either a panel of lawyers, as selected by the judges who wrote the opinions, or by editors employed by the publishers.  If you think of the common law system as a tree, with each precedent in a particular area acting as the limb from which smaller branches defining narrower areas emanate, this makes for a very well trimmed tree.

The recently-announced Public Library of Law, a site that provides U.S. Federal and recent state court opinions, offers an example of what’s possible.  Many of these opinions, which were born into the public domain in paper, become proprietary when digitized, have now re-entered the public domain.  A self-represented litigant – a rapidly growing segment of the legal world – can now pore over thousands of court opinions to find applicable law.  Similarly, a lawyer can reduce her overhead by relying on commodity legal resources and those provided by a government.  As the solo and small firm segment of the North American continues to comprise the majority of practitioners, these sorts of cost savings are important.

There are other free sites – like the various Legal Information Institutes (CanLII, BAILII, AustLII) – but they don’t have the resources to provide anywhere near the comprehensive collections a for-profit organization can.  Not only do they not have the people or finances, they are far more reliant on the goodwill of the courts for the content.  Sites like PLOL and LexisOne have a time-delimited set of content – search multiple years for free, but to get unlimited access, you’ve got to buy their full freight subscription.

None of these sites can replace professional legal counsel.  But the lawyers could benefit from deeper, free case law as well.  Instead, many legal resources encourage a print-based orientation to case law reporting.  If an opinion is important enough to issue in a particular case, why doesn’t it become part of the information available to legal researchers?  I read Everything is Miscellaneous (site) by David Weinberger recently.  It’s a terrific book for a number of ideas, but one is that we need to think about the miscellaneous nature of information.  We don’t have the limitations of pages in a publication or shelves in a library for housing case law any more.  The more we provide electronically, the more relevant opinions can be pulled together at the time they’re needed by the researcher.  The more case law is filtered – by judges, by publishers and others who make selections based on other criteria – the less likely that novel argument may get made.  Even when the opinions merely reinforce precedent, let’s hang more leaves on that branch of the tree and make it clear.  One of the primary benefits of the law is knowing what it is and what the consequences of not following it are.

And if you’re complaining about how much your lawyer is costing you, perhaps you should reach out to your political representatives and ask them why they aren’t doing more about this?  The cost of the administration of justice will continue to rise when lawyers – and the self-represented – have to pay more for public information, or merely remain uninformed and hope the system catches and corrects the errors.

    David Whelan

    I improve information access and lead information teams. My books on finding information and managing it and practicing law using cloud computing reflect my interest in information management, technology, law practice, and legal research. I've been a library director in Canada and the US, as well as directing the American Bar Association's Legal Technology Resource Center. I speak and write frequently on information, technology, law library, and law practice issues.