Much of the content that makes our justice system run — court cases, legislative materials, administrative summaries — is actually public information. The fundamental purpose of this information (or in the modern parlance, data) is to educate the public and ensure the fair and transparent administration of justice. New technology is making it easier and less expensive for everyone to access this information, but that doesn’t mean everything is copacetic.
This is the first in a series of three articles discussing the what, how, and why of open legal data.
In this article, we’ll talk a bit more about what this information is and why it’s important. Then we’ll talk about how courts are wrestling with these new questions, including how these issues have ended up at the Supreme Court of the United States. Finally, we’ll talk about how all this applies to practicing lawyers.
Why Does This Matter?
Historically, it was very expensive to produce and disseminate this legal information (for our purposes, we’ll call it legal data). So, access has been limited to those who could physically go to the source, such as a courthouse, those who could afford expensive books (back in the day), or those who could pay a hefty fee to one of the few legal research providers.
Several advances in technology make it much easier and far less expensive for lawyers and the general public alike to access legal data.
First, and most obvious is the internet. While internet-educated clients may often be the butt of the jokes lawyers tell one another, legal information — often provided or even explained by an attorney — is at consumers’ fingertips like never before.
Additionally, with the rise of both cloud computing and increases in computing power, increasingly “intelligent” algorithms can consume and analyze this information in radically new ways. Though we’re probably a long way from robot lawyers, complex data analysis and machine learning can provide powerful and informative insights directly to consumers in fairly compelling ways. Unsurprisingly, these advances in technology are creating novel questions of law.
It comes as no surprise, then, that the Supreme Court is teeing up to answer questions central to this very issue in the upcoming term.
SCOTUS Speaks: Will Open Data Soon Be Mandatory?
Carl Malamud is the president of the innovative Public.Resource.Org and a leading advocate and champion of the movement promoting open data in the law. Malamud is a storied figure in the ongoing fight to secure public access to the law. One of his favorite quotes by Justice Stephen Breyer nicely sums up his mission: “If a law isn’t public, it isn’t a law.”
Malamud’s victory last year in Code Revision Commission v. Public.Resource.Org was a significant win for open data advocates, settling a long-standing dispute over whether the Georgia government could claim copyright protection for the official annotations to its laws. In short, the 11th Circuit deemed the annotations public domain materials and, as such, not copyrightable.
SCOTUS is currently reviewing the case in response to Georgia’s writ of certiorari and heard oral arguments on Dec. 2. While we will likely not hear from the high court until the end of the summer, a few of the justices, such as Justice Neil Gorsuch, showed their hand. He asked Georgia’s attorney this notably pointed question during oral argument: “Why would we allow the official law to be hidden behind a paywall?”
Open Data and Access to Justice
Open data can promote and further the access to justice movement. When data is more freely accessible for lawyers, legal technology companies, and legal aid organizations to use and study, they can work in tandem to create innovative solutions to problems in the legal system.
One example is the simple opportunity for laypeople to educate themselves on the laws that bind them. It’s true that the public may have difficulty interpreting and applying the law as effectively as a lawyer with thousands of hours of training. But still, the more consumers have access to information on the law, the better they’ll understand it. And, with greater information and understanding, they’ll be better able to understand the opportunities and possible outcomes of their legal proceedings.
Further, open access to legal data allows lawyers and legal aid organizations to better gauge the need for legal services in their communities. For example, by allowing legal tech companies the opportunity to freely access court records and develop insights on the number and types of cases occurring within a given jurisdiction, they can uncover where the legal services needs of that area are unmet. In turn, organizations like the Legal Services Corporation, state legislatures and nonprofit law firms can better measure the real levels of funding required to address these needs proactively rather than reactively.
Open Data Is Better for Practicing Lawyers
Lawyers rely on access to accurate legal data to do their work. Over many years and for a wide variety of reasons, private companies have gained control over the distribution of a large portion of legal data. Today, the tools exist to make this publicly owned legal data more freely and broadly available. Still, those who can’t or won’t spend a fortune to reach that data (solo practitioners, small firms, or underfunded legal aid organizations), can’t get unfettered access to address the needs of those they serve. Without open legal data, these legal professionals lack not only the tools to adequately assess the problems in underserved client communities, but they also cannot fully engage with the legal system as intended.
Small firms don’t have the millions of dollars required to download all of the court records controlled by a variety of private providers or held in dozens of government databases like PACER. But if that information is “open,” new technology can “ingest” and, using complex algorithms, analyze volumes upon volumes of legal data — empowering lawyers with valuable insights that they can use to help their clients.
Ultimately, open, unfettered access to legal data can mean less time, money and headaches, bogging firms down and preventing them from reaching more people, fulfilling unmet needs and, consequently, turning a profit.
Charting a Path to Innovation
Legal data belongs to all of us. Advances in technology are beginning to turn legal data into open data and make it more organized, accessible and useful. But until the Supreme Court weighs in, this crucial question of whether legal data will be made open enough to realize its vast potential to empower lawyers and consumers will remain unanswered.
Next in our series, we’ll turn to how open legal data is made available to the public through technology, data science and forward-thinking public policies.
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