As someone that’s pretty much devoted their professional life to open and free information and tools, it’s sometimes hard for me to answer the question “why should I care?” when explaining the open law movement to people. I mean, it just seems so obvious that law should be free to access and use. But, as current litigation shows, that’s apparently not as obvious as one would think.
It is important to get more people interested and caring about this issue because I think things won’t change unless and until a large group of people – especially the bar – gets involved and calls for change. As it stands, I can pretty much count on two hands the people and groups that are currently advocating for change, and that’s clearly not enough.
So, why should you care about open and free law? Here’s a couple of reasons:
- Legal – It is a well settled matter of law that edicts of governments – by which I mean cases, statutes and regulations – are uncopyrightable. (See page 36). However, many states explicitly and implicitly copyright their legal materials. Do you think states should follow the law? Then you have a reason to be interested in the free and open law movement.
- Human Rights – All people have a right to fair and equitable treatment under the law. An open and public legal information ecosystem ensures this by allowing all to see what the laws governing them are. See also Article 21 of the Universal Declaration of Human Rights: “Everyone has the right of equal access to public service in his country.” The publication and promulgation of law is a service done by a government. Access to these laws must universal, not just to those that can afford a subscription to a publishing company platform.
- Access to Justice – If you’re not connected to the legal field, you may not be aware that there’s a crisis in legal representation. It’s currently estimated that 80% of the people that need a lawyer do not have one. And in the United States, there is no right to an attorney for civil matters. So what is a person to do? To effectively self-help, they need access to the law of the land. And, if they can’t afford an attorney, they probably can’t afford the several hundred dollars it would take to use an online research service. Yes, there are libraries, but that requires the ability to physically get to a library and assumes that the library is able to afford all law, which increasingly they are not. Open and free online law would ease the burden of the self-represented litigant. An increase in sources of law would also decrease attorney costs, which could lead to more reasonable rates for people to hire them. Which brings me to…
- Business and Innovation – The legal world is currently undergoing a renaissance in legal technology. However, there could be many more tools and services developed but for the fact that the raw material to create them simply isn’t available. Some examples? New ways of looking at search results, new metrics of research, an open cataloging and taxonomy of law (which would lead to better search results), and new ways of creating secondary resources are just a few. The current legal information market is a oligopoly. It has been estimated that newer entrants into the market must spend 80% of their company resources just converting the law into something usable. Imagine if those resources were instead put towards developing new tools. If that isn’t bad enough, the current contracts that state entities enter into with established publishers cause the state to refuse business with the new entrants. (See page 16)
- Accuracy – The law is unusual as far an information sources go because it’s very language specific. The placement of a comma or use of a certain word over another can completely change the meaning of a law. So it’s more than a little terrifying to realize that the companies with exclusive marketing contracts to publish official versions of law make mistakes in their publication. No one is perfect, but when they are the only source for the law, it is harder to detect these errors and correct them. Lots of copies of materials keep stuff safe, but they also keep things accurate.
- Transparency – In a democracy, one way to judge the way an elected official is performing is to view the laws that they support. While it’s easy to think that this only affects statutory law and legislators, the judiciary also comes into play here. Currently, 76% of state supreme courts and 79% of state appellate courts are either directly elected or subject to retention elections. Voters should have the opportunity to view the work of these officials and judge whether or not they should be still in their positions of power.
So hopefully one of these reasons is something that you can hang your hat on and get involved in advocating for free and open law. This needs to be a issue everyone cares about, not just a few.