The legal profession took some lumps at the recently concluded the Gov 2.0 Summit held here in Washington earlier this month.
For three days, social media thinkers, Silicon Valley entrepreneurs and yes even Beltway bureaucrats discussed how governments can fulfill their public service mission and provide new opportunities for economic growth by opening up the vast stores of data under their control to free public consumption. Two themes are at work in the Gov 2.0 space, a political theme and an innovation theme. First, there is the "the best disinfectant is the light of day" theme, which posits that public decisionmaking will produce the most democratic and enlightened public policy. See Sunlight Foundation and Gapminder for examples. Second, there is the "government as platform for innovation" theme, which asserts that government data is an untapped source of improved public service and an engine of economic growth. Sites like Apps for Democracy and Data.gov offer a glimpse of what is going on here. Government data on energy, health, and technology (possessed by the U.S. Patent and Trademark Office, for example) are believed to be fertile-yet-untapped sources of commercial exploitation.
Where Are the Lawyers?
Unfortunately, the legal profession was missing from the proceedings, convicted in absentia for being part of the problem instead of part of the solution.
Open records advocate Carl Malamud condemned the federal judiciary for foot-dragging (and worse) when it comes to making legal information available to the public. There was a populist tone to his remarks: the rich have good access to legal information and the poor do not. He's right about that, of course. He's also right to observe, as he did in By The People, that: "The fees for bulk legal data are a significant barrier to free enterprise, but an insurmountable barrier for the public interest." Malamud also dinged judges and lawyers for numerous privacy violations in publicly available PACER data.
Also speaking at the Gov 2.0 event was Stephen Schultze, a fellow at Harvard's Berkman Center for Internet & Society. Schultze spoke about his involvement with the RECAP project, an inspired bit of civil disobedience that liberates "free" court opinions from behind the federal court system's PACER paywall. Schultze is also the author of an illuminating paper on PACER fees and the federal judiciary's fitful implementation of Congress's 2002 command that judicial information be "freely available to the greatest extent possible."
And that was it as far as the legal profession's presence at this event. If Malamud is correct that law is the operating system of democracy, one might have expected to hear about all the great things lawyers and courts are doing to make the law more available and understandable to all.
I wonder: Why has the legal profession been so patient with the status quo? Why has the legal profession been content to pay the government $.08 per page for PDFs, a miserable data format, fit only for printing and consumption by human eyeballs? Or pay even higher prices to download equally crippled Microsoft Word docs from legal information vendors?
Lawyers, It's Time to Tag
The World Wide Web Consortium recently released a draft document, Publishing Open Government Data, setting out what it believes are best practices for the online distribution of government data. The W3C's main point was that government data should be both human-readable and machine-readable. As for machine-readability, the W3C paper recommended:
- enrich your existing (X)HTML resources with semantics, metadata, and identifiers;
- encode the data using open and industry standards - especially XML - or create your own standards based on your vocabulary;
- make your data human-readable by either converting to (X)HTML, or by using real-time transformations through CSS or XSLT;
- use permanent patterned and/or discoverable "Cool URIs";
- allow for electronic citations in the form of standardized (anchor/id links or XLINKs/XPointers) hyperlinks.
Wow. What would happen if every court and legislature released their output in a machine-readable, XML format, tagged with a standard document type declaration (DTD) written by the best minds in the legal profession? What if these documents were tagged with metadata such as legal subject-area, parties, attorneys, rules of law and cases cited, accessible via a public API and a permanent URI for each decision, statute, and regulation?
Sounds good to me.
I wish judges and lawyers and legislators would start attaching metadata (tags) to their work. Today. Computer programmers came though BNA over a decade ago with the news that our lovingly crafted editorial output was, in fact, merely data. That hurt a bit, but we got over it, we started tagging our work so it could be processed by computers, and our editorial work is better today because of it. The legal profession needs to get over it too. The law should be machine-readable.
If these changes came about there would be a veritable Renaissance in the legal profession. The price of legal information would fall, to the benefit of everyone in the system: judges, lawyers and their clients. New value-added information products would come to market, making the practice of law more efficient and effective, making the administration of justice more efficient, making the law more understandable to lawyers and the public, and making legal services affordable to a greater segment of the population. The supposed hegemony of the "Big Three" legal information providers would be shattered. They, along with everyone else, would have the opportunity to compete in a new and vibrant market for legal information services, for a piece of a new, bigger and better and more lucrative pie. My mind is pretty pedestrian, I'm not good at imagining the future. So I'm left with this: Imagine what sorts of products Google might produce if it had under its control a free legal database of the entirety of the world's legal output.
If these changes came about, legal information (raw data) would become simultaneously less expensive and more valuable. Legal knowledge, legal strategy -- the work of lawyers -- would become even more valuable. The work of judges would be more influential and more widely known. In pro football terms, my favorite source for metaphors, the rules of the game, the upcoming schedule, the raw statistics, and the names of the players on each team are easily discoverable for free. Yet, as far as I know, there is no online forum or wiki where football coaches share their favorite plays. This is a better world than the one we're in.
Not only is this the direction the legal profession should be heading, we should be there now.
More food for thought, and a lot of high-minded discussion, are available at the Gov 2.0 Summit website, where event organizers O'Reilly Media Inc. and TechWeb have generously made available many papers and videos.
Shout out to Gov 2.0 Summit organizer Tim O'Reilly, who says he is trying to replace the traditional notion of "government as vending machine" (taxes go in, services come out) with a more enlightened conception of government as platform for innovation. In fact, the federal government is a place where laws go in and money comes out. Hitch your Government 2.0 wagon to that mindset and you can't miss.
Before anybody calls me, these are strictly personal observations.
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