Tears Shed Over Peer Gynt's Onion: Some Thoughts on the Constitution of Public Legal Information Providers
Co-Director, Legal Information Institute
Cornell Law School,New York, USA
1. Apologists for the system consistently point to its comprehensiveness while conveniently ignoring the cost factor. See, eg., Robert C. Berring, 'On Not Throwing the Baby: Planning the Future of Legal Information', 83 Cal. L. Rev. 615, at 618 (1995).
2. See generally Vaver, David. 'Copyright and the State in Canada and the United States.' Crown Copyright in Cyberspace Conference. Montréal: Université de Montréal, Faculté de Droit, Centre de Recherche en Droit Public, 1995, online at < http://www.lexum.umontreal.ca/en/equipes/technologie/conferences/dac/vaver/vav er.html>.
3. The market structure is well-described in Henry Perritt, Jr., 'Market Structures for Electronic Publishing and Electronic Contracting on a National Research and Education Network: Defining Added Value', in Building Information Infrastructure, Brian Kahin, ed., McGraw-Hill Primis 1992, 344-402.
4. See Perritt, supra note 3; Bruce, T., 'Public Legal Information: Focus and Future', 2000 (1) The Journal of Information, Law and Technology (JILT), online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/bruce/>, and Greenleaf G et al, 'The AustLII Papers - New Directions in Law via the Internet', 1997 (2) The Journal of Information, Law and Technology (JILT), online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/greenleaf/>. Greenleaf is somewhat more aggressive than either Perritt or myself, wanting the public providers to establish standards of value which the private sector must then exceed in order to attract a market for their products.
5. See, eg., Chung P et al, 'A Defence of Plain HTML for Law: AustLII's Approach to Standards', 2000 (1). The Journal of Information, Law and Technology (JILT). Online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/chung/>.
6. Paliwala A, 'Access to Legal Information - A welcome return?', 2000 (1) The Journal of Information, Law and Technology (JILT). Online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/paliwala/>.
7. Bruce T, 'Public Legal Information: Focus and Future', 2000 (1) The Journal of Information, Law and Technology (JILT). Online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/bruce/>
8. A particularly succinct and useful description of the history of this proposition is to be found in Perritt, Henry H., 'Should Local Governments Sell Local Spatial Databases Through State Monopolies?', online at <http://www.spatial.maine.edu/tempe/perritt_2.html>. There are many interesting analogies to be drawn between the publication and sale of GIS data and that of black-letter law. Consider this passage:
Geographic information is an especially valuable type of public information. Land developers, those concerned with siting environmentally sensitive facilities, and public utilities pay substantial sums for integrated spatial databases. In many cases, profit-seeking entities collect much of the data necessary to an integrated spatial database. At the same time, government agencies, including those charged with collecting and maintaining geographic information like land records and survey information, face stringent budget constraints. As a result, it is natural for public agencies to suppose that they can ease their budget pressures and serve their publics better by appropriating some of the potential revenue stream; they can sell their information. Beyond that, it is natural for them to suppose that the quality of results and perhaps also the size of revenue stream can be increased by 'partnerships' with private entities.
Unfortunately, this is but a short step away from imposing restrictions on what other vendors and distribution channels can do. Most public agencies responsible for geographic information have either a natural or de jure monopoly on the information. Monopolists perceive that they can increase their total revenue stream by setting prices higher than they would be in a competitive market. Monopolists also are tempted to extend their monopolies into downstream markets. Thus, public agency decisionmakers, behaving like rational monopolists in the private sector, implement their partnership aspiration by prohibiting private sector competition with their chosen partners. The result is a state monopoly that limits economic and technological benefits to a broad range of potential distributors of the public information. And, as the monopolies are extended downstream by exclusive 'partnerships,' they block competition in a variety of rapidly changing and diverse markets for value-added information products.
There may be theoretical circumstances of economies of scale and other determinants of natural monopoly in which such arrangements would be economically efficient. However, such situations are rare and difficult to identify because the pace of technology and the fragmentation of the market tend to result in many vendors specializing in products or particular market segments. Moreover, there is no reason to suppose that public decisionmakers are better than consumers and entrepreneurs in picking technologies and product design; yet, that is exactly what they do to set up exclusive arrangements. The best market structure is one in which everyone is free to follow his or her instincts in commercializing new technologies and developing markets. The best information policy is one with a diversity of channels and sources for geographic information. Happily, that information policy is one that coincides with legal entitlements to access.
9. See the useful summary in James Wyman, 'Freeing the Law: Case Reporter Copyright and the Universal Citation System', 24 Fla. St. U. L. Rev. 217, online at < http://www.law.fsu.edu/journals/lawreview/frames/241/wymafram.html>.
10. N.Y. Judiciary Law §434 governs these contracts in New York State; the exact terms of the contracts themselves are confidential.
11. See, for example, the rather confusing list of critiques at <http://lawlibrary.ucdavis.edu/LAWLIB/Dec98/0118.html>. A less confused assessment that fails equally as prophecy can be found in Cary Griffith, 'Internet Yields Inadequate Waves for In-House Surfers', Corporate Legal Times, August 1995.
12. Indeed, neither Westlaw nor Lexis are themselves monoliths. They are branded federations of distributed collections, and this cellular, federated structure is perpetuating itself through merger and consolidation in the legal publishing industry.
13. See Dabney, 'The Curse of Thamus: An Analysis of Full Text Legal Document Retrieval,' 78 Law Library Journal 5, available on the Web at <http://www.yale.edu/lawweb/lawcrs/lasdab1.htm>, and Paliwala A et al, 'User Needs in Electronic Law Reporting: A Research Study of The Law Reports', 1997 (2) The Journal of Information, Law and Technology (JILT), online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/paliwala/>, summarizing and discussing an earlier study by Blair and Maron.
14. Woxland, Thomas A. and Patti J. Ogden, Landmarks In American Legal Publishing. Exhibit Catalog. Minneapolis: University of Minnesota Law Library (ca. 1996) p.38. As with most materials related to the history of American legal publishing, the catalog and its exhibit received support from a legal publisher (in this case the West Publishing Company).
15. John B. West, 'A Symposium of Law Publishers', 23 Am. L. Rev. 396, 406-407 (1889).
16. Computer manufacturers in the United States have long been accused of using so-called 'FUD' tactics (practices preying on Fear, Uncertainty, and Doubt) to market computer products and standards to hapless professionals. They did not invent the practice. At this point it would probably be impossible to come to any sort of agreement about what a reasonable level of comprehensiveness (or conversely, selectivity) might be – though interestingly publishers seem to be finding discrete subsets of legal information they can market on CDROM.
17. A comprehensive and detailed how-to on this point is available in Kendall F. Svengalis, Legal Information Buyer's Guide and Reference Manual 1997-98, Barrington, R.I.: Rhode Island LawPress (1996).
18. It was and is difficult to imagine a lawyer running into a crowded courtroom in Oklahoma and shouting, 'Wait! The Supreme Court has just ruled that…' after the fashion of last-minute television-drama denouement. Apparently the commercial online vendors felt that if a need for that level of timeliness did not exist, it could be created.
21. Advocates for the poor and other purveyors of personal legal services rely on this sort of informal network quite extensively, and there are many among them who advocate the extension of these networks via the Internet. One wonders if this is because they have been so poorly served by other legal-information services in the past. See, eg., Victim Services Report: The Newsletter of Victim Services, 8 No. 2 (Fall/Winter 1997), online at <http://www.victimservices.org/fw97eo.html>.
22. Indeed, there has been remarkably little objective assessment of quality factors among the online commercial publishers. The only attempt that I know of created such rancor and bad behavior from the vendors themselves that the publication dropped it.
23. Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, New York: John Wiley and Sons (1994). 34-39.
24. See for example Bruce, 'The Internet and Legal Information: Projects and Prospects', in Les Autoroutes Electroniques: usage, droit, et promesses. Quebec, Canada: Editions Yvon Blais (1995).
25. See, e.g., Stephen Johnson, 'The Internet Changes Everything: Revolutionizing Public Participation and Access to Government Information Through the Internet', preprint online at <http://merlin.law.mercer.edu/elaw/inter2.htm#first>, or Bruce, 'Legal Information, Open Models, and Current Practice', online at < http://www.lexum.umontreal.ca/en/equipes/technologie/conferences/dac/bruce/bru ce.html>.
26. Travis, Brian, and Dale Waldt, The SGML Implementation Guide, A Blueprint for SGML Migration. New York: Springer-Verlag (1995). The case study of the TIGRE system appears at pp. 371-384.
27. Notable efforts with legal information have taken place in Tasmania, and in Canada. State level efforts are underway in the US but thus far the US remains remarkably innocent of SGML in the production of Federal statutes, regulations, and judicial opinions despite the fact that SGML is a Federal Procurement standard. See in particular Arnold-Moore T et al, 'Connected to the Law: Tasmanian Legislation Using EnAct', 2000 (1). The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/arnold/>. An early report of Canadian efforts is given in the Seybold Report at < http://www.seyboldseminars.com/seybold_report/reports/P2514001.HTM>. Finally, some state-level projects in the US are reported by the National Center for State Courts at <http://www.ncsc.dni.us/NCSC/TIS/JEDDI/Jeddi-1.htm>. Thus far most SGML and XML efforts at the state level have been concerned with filing and other matters of court administration rather than with the dissemination of statutes, regulations, and judicial opinions. But of course the most extensive government use of SGML in the United States is in the arena of defense procurement and systems, where it is ubiquitous.
28. See Hammer, Michael, and James Champy, Reengineering the Corporation: A Manifesto for Business Revolution. New York: HarperCollins (1993), pp. 36-39 and 202.
29. Berring, supra note 1, at 621.
30. It is notoriously difficult to wrestle Web server log files into accurate profiles of an audience. Some rather unscientific tallying of our own, along with the rather better information we get from subscribers to our current-awareness services, leads us to believe that the non-lawyer professional audience accounts for better than half of the more than a million hits the LII site receives daily.
31. New York State Judiciary Law §434, online at < http://assembly.state.ny.us/cgi-bin/claws?law=53&art=27>.
32. This figure is derived from an AltaVista survey made in September of 1999; projections would indicate that the total could now be as high as 45%.
33. Marc Galanter, 'The Legal Malaise, or Justice Observed,' 19 Law and Society Review 537, 545 (1985).
34. See, eg., <http://www.swrcb.ca.gov/water_laws/index.html>, a consolidation of state and Federal water laws by the California Water Control Board, or the regulations covering Federal grants to research institutions consolidated at <http://www.upenn.edu/researchservices/spmanual/agency.html>.
35. Travis and Waldt, supra note 26, at 372.
36. Perritt (supra note 8) remarks that
'…if the government gives or sells public information below cost, it may undermine market opportunities for private vendors. This is undesirable, because any system of dissemination of public information depends to some degree on the private sector. If the government eliminates competing sources of public information, it raises the price and creates the possibility that the government will control knowledge of its operations.'
Perritt assumes (as he has elsewhere) that everything that is not done by the government is done in the private sector. Thus he either ignores the existence of public actors like AustLII or the LII or implies that they closely resemble private-sector activity with a very low price point – a proposition I would agree with.
37. Government bodies that produce descriptive information like labor statistics seem to have less trouble with this idea. See, e.g., the diversity of reports and alternate information structures available from the US Census Bureau at <http://www.census.gov/>. For an example that is closer to our concerns here, see the Social Security Administration site at <http://www.ssa.gov/SSA_Home.html>, which includes what is essentially regulatory information in Spanish as well as a specialized presentation for children.
38. Having seen the LII characterized many times in print in ways that conspicuously fail to capture all of its phases and aspects I am suspicious of my own ability to characterize another, equally complex operation. The notions put forward here are gleaned from the examination of materials at the AustLII site <http://www.austlii.edu.au/austlii/> and those published by AustLII principals in various venues over the years, including The AustLII Papers (online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/greenleaf/>) and the AustLII technical roadmap, most recently published at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/austin/>.
39. A convoluted and detailed vision of such a regime is put forward in Bruce, T, 'Public Legal Information: Focus and Future', 2000 (1) The Journal of Information, Law and Technology (JILT), online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/bruce/>.
41. I say this in complete ignorance of how something like a state-owned enterprise might function in this context, a notion that might well be worth pursuing. Recent experience with the US Postal Service would indicate that such a structure might well provide a good level of universal service while holding its own against private competition in niche markets.
42. It is a great shame that there is no hard data to be had on price sensitivity and demand elasticity in non-lawyer professional markets for legal information. Indeed, there is precious little to be had on the lawyer market for legal information, beyond what one might deduce from the practices of the large commercial vendors and their lower-priced, Internet competitors. Legal information has for so long been treated as a commodity for which there is inelastic demand at the high end of the market that we have little to go by. One might hope that someone with sufficient curiosity and perseverance to read the footnotes in obscure tracts on the structuring of public legal information systems would be interested in doing some empirical research.
43. In some settings Internet distribution might better be considered as the foundation of a print-on-demand system. The needs of areas like sub-Saharan Africa, where the information pipes leading in and out of the country are thin, and local telecommunications infrastructure is poor, would argue for Internet delivery of information to a central point from which wider distribution takes place in print. The same may be true of local communities or even neighborhoods where access to bandwidth is low but where logical agents for print distribution exist.
44. Berring, supra note 1, at 627.
45. Katsh presents a portrait of law libraries as exclusionary institutions separating the body of legal knowledge from other areas of human endeavor. See Ethan Katsh, The Electronic Media and the Transformation of Law, Oxford: Oxford University Press (1989) at 215.
46. It is equally intriguing to consider the degree to which most law librarians see the category 'non-lawyers doing legal research' as equivalent to 'pro se patron representing herself in a formal proceeding'. The author has somewhat cynically remarked that a third category, 'homeless derelicts shambling about the reading room', is often seen to be the equivalent of the first two. Note, for example, the perception implied by the inclusion of law library security as a topic in a session on handling the needs of pro se patrons conducted by the Southwest Association of Law Libraries (at <http://www.law.uh.edu/swall/schedule2000.html>).
47. So-called 'plain English' legislation serves a similar purpose in providing the public with intellectual access to the law. Interestingly, the quieter, self-imposed initiatives undertaken by agencies such as the Social Security Administration in rewriting their own regulations have probably been more effective.
48. See Cox, W. Michael and Richard Alm, 'The Right Stuff: America's Move to Mass Customization', in the Federal Reserve Bank of Dallas Annual Report (1998), online at <http://www.dallasfed.org/htm/pubs/annual/arpt98.html>.
49. It may be that the commercial services in the United States are getting something of an education in this respect. For years they have added features that had little value outside the attainment of momentary advantage over a sole competitor. As the market has opened up to more sellers and as various circumstances conspire to create a more price-sensitive buyer, this kind of duopolistic shot-trading has become less and less useful.
50. Greenleaf, supra note 4.
51. Perritt, supra note 26.
52. The GPO updates the Code on a continuous, rolling basis that takes about a year to run the cycle of all 50 titles. At any given moment the most out-of-date title will be nearly two years old; the least about a year old. Updates to the public version occur in batches of 3 to 6 titles; so far as we know the schedule is neither regular nor published in advance.
53. It is John B. West's invention of the reporter system as a more rapid alternative to official reports that is most often held out in support of this claim, and indeed West did provide a valuable innovation that responded to deficiencies in the official reporting system. But this does not mean that government has always been slower, or private publishers faster. In the 1840s, for instance, Congress found it necessary to introduce amendments that would force newspapers into timely reporting of legislation (5 Stat. L. 527); much earlier, it had been necessary to subsidize private printers in order to get them to take on the printing of laws at all (1 Stat. L. 724). Perhaps the most disturbing thing about the historical arguments brought to bear on this point is a distinct feeling that history is being written by the victors; it is difficult to find an historical study of American legal publishing in which the West Publishing Company is not somehow involved as sponsor or publisher. This is not to diminish John West's innovation, but it would be a mistake to believe that the conditions that produced it are an unalterable and eternal reality.
54. I speak here of the United States Postal Service, which has improved enormously in the face of competition from private parcel services and is in fact more than holding its own. Just how radical an improvement this is can be seen by comparing the customer-satisfaction survey at < http://epinions.lycos.com/srvc-Postal-Brand-USPS/PriorityMaill> with the opinions expressed in the Berring article quoted below, which holds out the Postal Service as an undesirable example of government inefficiency.
55. Berring, supra note 1, at 621 (footnotes omitted).
56. Print can be quite fast, too, as the speedy release of the Starr Report on the independent counsel's investigation of President Clinton amply demonstrates. See Christopher Yeich, 'Print's wild week; fast release of major news in print and electronic news formats' in Graphic Arts Monthly, October, 1998.
57. See, eg., the Minnesota state statutes, Web-published at <http://www.revisor.leg.state.mn.us/stats/>, or any of the other resources mentioned in the so-called 'LII Honor Roll of State Law on the Internet' at <http://wwwsecure.law.cornell.edu/background/states/>.
58. The system in place in Tasmania is arguably the best available in the world today. See Arnold-Moore T et al, 'Connected to the Law: Tasmanian Legislation Using EnAct', 2000 (1). The Journal of Information, Law and Technology (JILT), online at <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/arnold/>.
59. Indeed the history of the EnAct project in Tasmania as described by Arnold-Moore (see note supra) resembles nothing so much as a re-engineering case study, and it would be interesting to see it fully treated in that manner.
60. 1 Conn. Rep. Xxviii.
61. West Group is currently a $1.3 billion business. Simba, Inc. Electronic Publishing Report, issue of November 13, 1998.
62. Of course, fiscal capital is not the only form of capital, and it might remain desirable to concentrate intellectual capital in the form of expertise about electronic systems in a centralized operation or in some other locus outside government. We discuss this issue later.
63. See Richard Delgado and Jean Stefancic, 'Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma', 42 Stanford L. Rev. 207 (1989), and M. Ethan Katsh, The Electronic Media and the Transformation of Law (1989), pp. 218-226.
64. 2A Norman J. Singer, Sutherland Statutory Construction § 47.14 (5th ed. 1992).
65. As it did in United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989).
66. See Singer, supra note 64.
67. For some indicators of what these are likely to be like, see the DTDs published by LexUM at < http://www.lexum.umontreal.ca/en/equipes/technologie/index.html>.
69. The author is quick to assert that he comes by this information through the reading of statistical reports on HTTP referrer activity, and not by direct examination of primary sources.
70. United States v. X-Citement Video, 513 US 64 (1994).
71. This is ordinarily the case when statutory interpretation turns on questions of punctuation or arrangement. See Henry Campbell Black, Construction and Interpretation of the Laws (2d ed. 1911), §§ 86-88.
72. I suspect that there is an analogy to be made to software-quality engineering, in which the cost of repairing defects increases exponentially as the program moves from testing into production.
73. For a rather complete statement of AustLII's process, see Austin D et al, 'Scalability of Web Resources for Law: AustLII's Technical Roadmap: Past, Present and Future', 2000 (1) The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/austin/>.
74. This faithfulness to print won PDF a foothold with agencies like the IRS that use it primarily to distribute tax forms and other fixed-format materials. This is something that PDF is very good at. Unfortunately, this has been taken to mean that it is generally virtuous as an electronic format where in fact it is far from it.
75. See generally Travis and Waldt, supra note 26, pp. 151-182.
76. See Hal Varian, 'The Future of Electronic Journals', online at <http://www.sims.berkeley.edu/~hal/Papers/publish.html> for comments based on experience with journals that accept multiple electronic submission formats – a context that is in some ways highly suggestive of the changeable nature of judicial output over time.
77. See Austin, supra note 72.
78. A recent project the LII undertook for the New York State Court of Claims revealed seventeen different formats for opinions written by seventeen judges, each of whom was a passionate advocate for his or her own method.
79. This is more or less the situation with the US Government Printing Office at present. See their mission statement, online at <http://www.access.gpo.gov/public-affairs/5-99facts.html>. It speaks of their mission to serve the Federal community, and says not one word about the public.
80. This entire set of arguments is currently being played out in controversy surrounding the potential decommissioning of the National Technical Information Service (NTIS) in the United States. Hearings of the Technology Subcommittee of the House Science Committee, Sept. 14, 1999.
81. Well-documented proof of this assertion is hard to come by, primarily because comparative analyses of public and private resources are rare except in the complaints of law librarians and information-retrieval researchers, neither of whom have been fond of the official systems. Perhaps the best evidence that can be marshalled on this point comes from the abandonment of citation to official state reporters in the last edition of the Bluebook, based on complaints that they were unavailable and generally inferior. If the reader is beginning to suspect that there is a certain circularity about all this – official reports are bad because more resources go to privately published reports, which then gain more resources by asserting that the official reports are bad – then the reader is beginning to get the picture.
82. See, e.g., Berring, supra note 1, at 620. Contrasting sharply with this rosy picture is substantial if undocumented dissatisfaction on the part of information-retrieval researchers. They complain that in reality commercial online publishers have been uninterested in research and have devoted far more substantial resources to the expansion of collections than to improving information quality and the technology underlying their services.
83. F.M. Scherer, Industrial Market Structure and Economic Performance, 2nd. Ed. Chicago: Rand McNally (1980) p. 438.
84. See, eg. the Delaware Court of Chancery site, <http://corporate-law.widener.edu/ctofchan.htm> (interestingly enough operated by an academic law library), Louisiana Business and License Information at <http://www.state.la.us/state/business.htm>, the Rhode Island 'First Stop Business Center' at <http://www.state.ri.us/bus/frststp.htm>.
85. Unsurprisingly, it tends to be industry leaders and other quasi-monopolists who argue this. Things are even more fun when two industry leaders or quasi-monopolists dispute territory. See Jesse Berst, 'Why Sun and Microsoft Won't Let You Have A Wired Home', available via ZDNet at <http://www.zdnet.com/anchordesk/story/story_4376.html>.
86. An interesting view of how W3C actually thinks about these matters is provided at <http://www.w3.org/Consortium/Process/Process-19991111/>.
87. There is no better illustration of this proposition than the GOSIP standards process, which produced very few implementations during its 14-year history. An entertaining exposition of its failures and those of standards processes generally is in Marshall T. Rose, The Little Black Book: Mail Bonding with OSI Directory Services. Englewood Cliffs: Prentice-Hall (1992). Discussion of the standards process is at pp. 290-301, under the heading 'A Long Dark Night for Open Systems'.