Rory Perry's Weblog
Law, technology, and the courts

Law Is Free

This story was originally published on March 7, 2002. Since that time, many of the themes discussed have been further developed on this weblog and others. Comments on some of those developments appear below.

After following the initial progress of the Radio community, I've come to believe that this type of web publishing will have a widespread and drastic effect on the development of the law. By changing the way court opinions are published, I believe the law itself can be transformed in the same way that web publishing has transformed software and news content.

First a little background. My name is Rory Perry, and I currently serve as the Clerk of the Supreme Court of Appeals of West Virginia. As a constitutional officer appointed by the five justices, part of my duty is to insure open access to the courts by accurately preserving and indexing the records of the court, and making those records available to the public. In order to preserve public trust and confidence in the judiciary, the public must have access to the records of the court's business; this constitutional mandate is even more important today, as courts increasingly use the Internet to do business.

Emergence of the Modern Court-Publisher.  In addition to supplying open access to the records of individual disputes, courts play a vital function in the development of the law itself, by issuing written decisions on the cases before them. Each of those decisions, in turn, relies on previously-established principles of law, creates new points of law, and/or overrrules a prior point of law. All of the published decisions on a given topic, when taken together, can be said to constitute "the law" at any given point in time in a particular jurisdiction. In this fashion, the development of the law is an interative process, similar to software development: one point builds upon the other; subsequent opinions "fix bugs" in earlier ones, or "add new functionality" in the face of a new set of facts. Although arrangements vary among the states regarding publication of court decisions. Throughout the US, most state courts that publish opinions use commercial services, (West, Lexis-Nexis) as the "official" version of court opinions. Commercial services add content to the opinions by providing topical indexes to the points of law in a manner that is convenient for attorneys. The opinions are published in hard-bound volumes available only for a price. The commercial vendors also operate excellent electronic research services, but again at a price to the end user.

Leveraging Public Content.  Overall, the legal publishing world as it is presently structured may be fine for attorneys and others who can afford to pay for content, but for many others, including pro se litigants and many attorneys and law firms tired of paying subscription fees or maintaining CD-ROM jukeboxes of constantly-updates resources, the legal publishing world is neither accesible nor productive. Before posting documents on the web became commonplace, commercial legal publishers provided a crucial public service. Now that most courts, including the Supreme Court of Appeals of West Virginia, post the full text of all opinions as soon as they are issued, the power of commercial publishers lies in their value-added content and analysis, not in their power to deliver instant content to the people.

Diminishing power of private content.  Even the power of the value-added content of private legal research services is beginning to dwindle.  My evidence is anecdotal, but real-world. An increasing number of excellent practicing WV attorneys have told me recently that they are cancelling their subscriptions to commercial electronic legal publishers. Why? Two reasons. First, because all the content is already available, and searchable, directly from the source itself, right on the Web, from the day the decisions are released. What's more, a service I started last year [2001] delivers short topical summaries of all opinions filed via e-mail. This simple idea has real power to attorneys, who have repeatedly praised this service.

The point -- law is free. So now that courts have the power to deliver content themselves, why aren't they doing it? Well many are at least posting decision on their respective Web sites. And there are movements afoot to create common markup standards for court decisions. But why not take the next step? My guess is that the right technological answer hasn't been available yet. But with the advent of XML-RPC, SOAP, and DIY Web Services, I think the landscape is changing dramatically. Here's what I believe would change the law itself radically: Make the points of law in court decisions available as a "feed" on a macro scale -- attorneys and interested members of the public could subscribe to various topical channels of a "legal" aggregator, made up of original source contributors (courts), and open source-webloggian-legal commentators. Nothing like this is really happening now, as far as I know. (Free legal publishing sites like Findlaw simply re-post the static content made available from the various states.) That's the germ of the idea. And what I want to do with it is use Radio to create a legal feed, then see where these ideas go.

In the year I wrote this story, I've grown more comfortable with the technology, and have added several new pages to the WV Supreme Court's offering of online information, each with its own RSS feed:
Click to see the XML version of this web page. Recent Opinions
Click to see the XML version of this web page. Civil Topics
Click to see the XML version of this web page. Criminal Topics
Click to see the XML version of this web page. Family Topics.
On the larger scale, we've seen wonderful growth in the quality, scope and timeliness of free legal content on the Web. During the past year, blawgs by law professors, legal scholars, journalists, appellate practitioners, law librarians, legal pundits, paralegals, law firms, international lawyers, trademark lawyers, law students, and law clerks have come online. (To read them all, check out Denise Howell's blawgroll--she coined the term "blawg", after all, and Ernie's Law Blawgs Outline.) Lawyers who can write code, or poetry, or design pages, or tell good stories, are all fastening quickly to the growing rubric of customized, smart and lively knowledge exchange. Outlanders no longer, blawgers have even been recognized by the American Bar Association. Given all this, I have little doubt that more lawyers and legal professionals will continue the trend toward participation.

And being a loquacious bunch, it's likely that our talking will have a beneficial side product: a deeper and more freely available body of knowledge about the law and its effects on our lives. Building the new Blackstone, blawg by blawg.

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Last update: 11/10/05; 3:44:41 PM.