Monday, January 25, 2016

Free Legal Information is Not "Risk Free" for Attorneys or the Public : The Glassmeyer "State Legal Information Census" Examined

Earlier this month Sara Glassmeyer, Librarian, Lawyer and Information Provocateur published an important new study outlining the substantial shortcomings of “free” digital,  legal information in the United States. Glassmeyer has spent the past year as a Fellow at the Harvard Library Innovation Lab and has produced what I believe is the first comprehensive census on the quality of primary legal resources published by states on the web.  “The State Legal Information Census: an analysis of primary state legal information” is a “must read” for every information professional,whether they are engaged in research, training, curation, cataloging, procurement or knowledge strategy.

The next time you are asked why you are paying for commercial research products “since everything a lawyer needs is on the web” -- just whip out the Glassmeyer report.  I have long suspected the difficulties and unevenness of free digital resources on the web but I had never seen a systematic analysis of the problem.  Glassmeyer’s report fills the gap and moves the ball from impression to proof.  State legal publishing is a vast and uneven landscape offering the public content which is impaired by yawning gaps in reliability, currency and completeness. Glassmeyer scored each state based on 14 access criteria. No state got a perfect score. Most states have serious deficiencies.
S. Glassmeyer State Census Ratings

Glassmeyer describes an ” information desert” which exacerbates the access to justice crisis in the United States. More and more people are seeking to address their legal issues without the assistance of a  lawyer and relying on these public resources.  While the goal of the report may have been to highlight the variety of obstacles  which the general public faces in accessing the materials promulgated by their governments ---it also  underscores the significant risks which lawyers  assume when they rely on free government websites for primary source materials.
The report focuses on state primary legal resources including codified statutes, administrative, regulations and case law which are made available by each state. Glassmeyer has outlined a chilling litany of obstacles, irregularities, oversights and shortcomings which hamper the usability of state legal information.
The Report’s Recommendations Include:

  •  States should create law portals to provide one-stop access to all state legal information.
  •   States should publish information openly and reduce barriers to reuse such as copyright claims in state created content.
  •  Official publications should move from print to digital to promote greater access.
  • All copyright claims as well as restrictive use terms should be removed from webpages containing state primary source material. Disclaimers should warn about the limitations and usefulness of legal information provided.
  • States should consider outsourcing web-based content to commercial publishers in order to improve comprehensiveness and usability.
  • States should provide basic disclaimers about the use and usefulness of all legal information collections advising of the need to validate that the material is current (i.e. hasn’t been repealed superseded overruled or withdrawn etc.)

What Does “Access” Mean?  Glassmeyer’s report deconstructs the notion of “access” and investigates the variety of issues which create impediments to quote “meaningful access.”  All of these concepts described are familiar to information professionals --these are the warp and woof of collection analysis.
Barriers to access include:

·         Cataloging since the law is full of  "terms of art," full text searching of a free database does not necessarily create access for a nonprofessional. No state provides an index to its case law.

·         Citation citation systems help practitioner determine the validity of case law and courts require that pleadings and filings include official citations. There are no free public citators and the public is required to purchase official versions of cases in order to comply with court filing rules.·         Ironically most online versions of cases statutes and regulations are not considered official for purposes of citation. In some states it is not even possible to determine what is the official version.

·         Citators No state provides a citator for validating its law.

·         Container The format in which the digital content is published has an impact on its usability. States publish materials in PDF, HTML as well as mixed formats. The entire repository of caselaw, statutes or regulations may not be in the same format.

·         Content archives. The majority of states post incomplete collections of codes, regulations and case law. Most collections start in the mid-1990s. The validity of these codes and regulations cannot be determined without the assistance of a professional librarian.

·         Control. States attempt to control the use of law by posting copyright claims and usage restrictions. Eight states actually post restrictions on the use of case law – – indefensible in a common law system where precedents matter.
·         Conveyance-- how the state makes the information available. In most states, the print version of a case, statute or regulation remains the “official “version.  Most states do not allow bulk access to their legal information and most prohibit web scraping.

·         Copyright although it is a general rule that states cannot copyright their official publications, several states do post copyright notices claiming copyright in their cases, statutes and regulations. 

·         Corporate control since many states rely on commercial publishers to publish their state law, this increases the cost of access to state materials. In addition, commercial publishers wrap the public domain law with editorial enhancements making it difficult for the public to understand what they can use and what is restricted.

·         Correctness. For a resource to have value it must be trustworthy and yet some states place disclaimers on their websites suggesting that the information cannot be trusted. The problem of revised court opinions is particularly troublesome. Courts post slip opinions which they don't remove or flag when there is a subsequent change.

·         Cost. Most state law is free on the Internet but there are some significant exceptions where states charge for access.

·         Currency. The law changes constantly but some states fail to update their materials quickly and fail to post a clear indication of  when the material was last updated.

·         Search. Legal materials are not searchable on some state websites. Most states only provide a basic search function. Advanced search features would enhance both precision and retrieval.

A Public-Private  Solution? Although many states have adopted the Uniform Electronic Legal Information Act (UEELMA) this did not result in “barrier free” access to information. The report suggests that  commercial publishers are simultaneously  part of the problem and part of the solution. At this point in the 21st Century the major commercial publishers with editorial teams (Lexis, Westlaw, BloombergBNA and WoltersKluwer) offer the best hope for producing legal resources with editorial quality, cite checking  tools, complete  archives and  current content. This may change as new technologies and legal startups evolve. Ravel and Fastcase are creating lower cost alternative approaches to legal research but neither is in a position to "clean up" the wide variety of state statutes, regulations and caselaw issues outlined in the Glassmeyer report.

 It seems unlikely that states have the will and the wherewithal to fix the problems outlined in the Glassmayer report any time soon. Commercial publishers have the technology and expertise but not the incentive to make all of the primary content  (which they acquire from the states)  available to the public in a user friendly platform. As primary law gets commoditized and legal publishers shift their focus from content to process,  will they consider  public-private partnerships designed to create reliable open access to primary law across the United States?

In the meantime – let the lawyers and public beware: Free legal content is not risk free.

1 comment:

  1. Before announcing that open-law efforts are risky, we might do well to consider who's using them and how. For example, many members of the public who do research using open-access sites are not doing legal research as lawyers would understand it. I'd venture that the majority are not involved in disputes, but are instead planning business or professional activities in which research into the law is a risk-management component. Although I'm well aware that it's not an easy fact to get at, one might want to consider just how many people are perfectly well-served by current versions of the statutes and regulations (and it's near certain that in the online world the audience for stats and regs is majority-non-lawyer).

    I'm a huge fan of the author and her work, but this seems to reach its conclusions based on a set of "universal" standards that fit lawyers working with caselaw better than they do some other, very common activities.