Open Access to Law – How Soon?

Professor Chris Marsden explains what is behind the Openlaws.eu project and explores the current landscape of access to law in the UK.

The law is a slow-moving beast, as are most lawyers (members of this august Society obviously excepted). Yet with more non-professionals appearing before the courts, in an ever more litigious society, but with fewer resources to engage legal professionals, learning something of the law is more important than ever. In a Knowledge Society, citizens can now access information about their surgeon, their school, their university professor, their neighbours - but not the law, with few exceptions. This is untenable; governments worldwide, together with legal professionals and scholars, have in the past two decades made plans to move towards open access to law via the Internet. This article explores how far the English law has moved, and what remains to be done. It concludes by explaining the pan-European openlaws.eu project, which is releasing its beta version in a Salzburg code camp on 20-21 March (the hills may well be alive with the sound of legal hacking).

The 2014 SCL Annual Lecture was given by LCJ Thomas[1], who explained that the Treasury was minded to provide the money for the judiciary to finally use a common modern document handling and casework system. One of the many advantages of this is that every judgment can then in theory use the same metadata and be stored in the same format, ready for release to the public as open data.[2] This intriguing possibility gives a sense of the potential for opening access to law – and the extraordinary delays that mean this remains a pipe dream in 2015. Imagine a world in which you can access all cases, legislation and commentary in your specialist area of law at the touch of a button, with immediate access to all the other lawyers in your field of law – without having to merge Google,[3] Lexis-Nexis, your favourite blogs, LinkedIn and this community!

Open access to law means open access to legislation, to case law, to commentary and to other experts in your field. I examine each in turn, with a specific focus on England and Wales.

Encouraging signs and substantial hurdles

Legislation is an area in which the UK has a good and improving record on opening access to law.  John Sheridan, Openlaws advisor and head of the legislation.gov.uk project, is close to achieving an up-to-date statute database by the end of 2015, accessible in various open data formats.[4] The UK leads the world in its 'Open Data score' for legislation,[5] which is important to the Ministry of Justice and Cabinet Office in ensuring a virtuous circle of investment in the small legislation.gov.uk team. While there is room for improvement in metadata standards (such as the European Legislation Identifier or ELI), the legal database is now open to large and small commercial companies, and charitable organisations, to 'mash up and remix'. This parallels the work of the European Union's Office of Official Publications, and the two are combining to work on an E-Law Working Party database which will, in a pilot, try to show the member states which have transposed European law into their domestic systems (against the opposition of those who have not…!) It is always worth adding that while UK and EU systems are 'best of breed', there is never enough granularity in XML to please everyone.

Legislation.gov.uk receives 500,000,000 page views a year, but is not the largest Internet law source in Europe. Its French equivalent also includes case law and receives 20% more page views: http://www.legifrance.gouv.fr/. Are the French more tech-savvy than the Brits? It seems that the reason for LegiFrance's greater popularity is that it integrates legislation and case law, a task until now beyond the UK system. However, the former head of the National Archives, Natalie Ceeney CBE, is the new head of HM Courts and Tribunals Service (from 5 January[6]), which augurs well, together with LCJ Thomas' IT reforms, for producing a potential for a case-law database to be provided in open data format. The combination and recombination of case law with legislation has been possible for many years via the various commercial databases available, notably using the services of Lexis-Nexis and WestLaw. Case reports are provided by both the Incorporated Council of Law Reporting (ICLR), which receives the hard copy of each case reported, and BAILII, which receives the electronic copy (though in practice there is often little difference). Both are legal charities committed to educating lawyers via the supply of case reports. Sir Henry Brooke explained succinctly that the 'iniquitous Treasury-driven policy of "full cost recovery" in the civil and family courts, which is not heard of in any other common-law country, has impelled them to spend as little as they can in connection with the publication of judgments, through the system of devolving responsibility to profit-making contractors'.[7] Thus law reporting has been a private selective business, rather than a matter of provision of one of the most important of public goods: knowledge of the laws. 

Lord Neuberger concluded the first annual BAILII lecture by quoting Lord Lindley, who stated in 1885 that the law reports 'are so valuable, not only to legal practitioners but to all persons who care for English Law as a scientific study or who take an interest in its development and improvement, that every member of the Profession ought to the best of his ability to assist in supporting and perfecting them'[8]. This was only two decades after the founding of the ICLR (http://www.iclr.co.uk/) to replace the nominate reports provided by far from disinterested or necessarily well-trained junior barristers. In the case of the Canadian law reports, that commitment has been durable and sustained, with the Federation of Law Societies of Canada backing the Canadian Legal Information Institute (CanLII) over the entire period since 1998, for a cost of less than £20 per annum per law society member.[9]

By contrast, in the UK, BAILII has struggled for financial support despite the provision of electronic law reports, with a real funding crisis occurring in 2011.[10] ICLR also faces an uncertain future, given the breadth of coverage needed and the financial crisis affecting large parts of the profession arising from the government's austerity-imposed cuts.[11] The technology is so inspiring and the financial prospects for charitable provision of legal information so straitened that it may be the best of times and worst of times for case law reporting. Paul McGrath for ICLR states that: 'in more and more cases litigants are having to represent themselves, and this means that, whether we move towards a more inquisitorial process or continue to use an adversarial approach, there will be fewer and fewer cases sufficiently well argued on both sides to warrant treating the court's decision as binding new law'.[12]

If the outlook for access to legislation is relatively rosy, and that for case law uncertain in the extreme, then commentary offers a mixed picture. Open access journals such as this (for members, academics and students, and in certain cases to anyone), blogs, the magnificent pioneer Outlaw.com, law firms' own sites, are now proliferating faster than most of us can keep up. Even the venerable subscription law journals increasingly offer open access on some terms, as part of a 'freemium' offer to tempt readers – and authors. The problem is not insufficient information, even for specialists, but insufficient indexing. A generic search engine cannot provide a tailored answer. The solutions in the recent past such as syndication, Twitter and 'blawgs of blawgs' have been all but overwhelmed. What might work is a platform that offers the chance to self-publish for lawyers to their legal community. For that, one needs a legal community, not a LinkedIn group, however well motivated.

Communities: What we have and what we need

What is that community? Social networking provides a powerful mechanism for sharing legal information and analysis. Lawyers were some of the critical early users of social media innovations such as the coffee house in the 17th Century, as discussed by Tom Standage[13]. McKinsey Global Institute has indicated that 'knowledge workers' (which obviously includes lawyers) can increase productivity by 20-25% using social media.[14] By contrast, many US law firms continue to have only a single AOL.com email address for all communication and actively discourage the use of social media by their lawyers. This is in response to both fears of proprietary knowledge being shared, client confidentiality and Luddism – the fear that new technologies can disintermediate their low level work, as SCL President Richard Susskind has discussed extensively in his work.[15]

While lawyers use the horizontal (all-industry) professional social network LinkedIn in large numbers, the few vertical (lawyer-only) sites – such as DiverseLawyers and FoxWordy – have not reached critical mass.[16] Note that LinkedIn is much more widespread amongst English-speaking audiences. On 1 November 2014, 'legal' produced 5,001,668 people results on LinkedIn, the first time over 5,000,000 people were so classified. Attorneys produced 806,133 results, with US total of 682,719. 345,515 people used the word 'lawyer' to describe themselves on LinkedIn. There were 148,000 'solicitors', with 88,000 in the UK. 'Notary' produced 223,000 results. There were over 12,000 LinkedIn groups using the word 'legal' (60% were moderated closed professional groups) and 17,000 using 'law'. There were 35,000 members of the group 'Law Society Gazette' intended for practising lawyers in the UK and 623 groups containing the words 'American Bar Association' or 'ABA' with a combined membership (including duplicate-triplicates) of over 1,000,000.[17] The European Lawyer Group has 18,000 members, the Corporate Lawyer Network 90,000 members, Accountant-Lawyer Alliance (ALA) 50,676 members. Lawyers are socialising enormously via LinkedIn but not lawyer-only social networking web sites.[18] Note there are also over 1,000,000 people with 'police' in their job title and 1,300 'law enforcement' groups with well over 100,000 members. These professionals almost certainly also work within legal fields (broadly drawn).

So the community is fragmented, partly because busy lawyers multi-task – a LinkedIn profile enables contact with clients as well as fellow professionals.

Database use

Dual use is not just found in communities – it also proliferates in some of the databases described earlier (BAILII has about 60% non-lawyer use). The enormous number of law students means that many free legal resources are accessed by students as well as litigants, lawyers and academic researchers.

The other key need for lawyers, students, clients, citizens is mobile access to all these information sources: legislation, case law, commentary, community. The Austrian legislation mobile app RIS:app has had over 30,000 downloads and 5,000 registered users – in a country with 6,000 trained lawyers.  The Openlaws 2014 survey illustrates the broad range of law 'users' and their resources of choice.[19] The users identified themselves as legal professional 63%, non-legal professional 25%, citizen (6%), other/publisher 6%.[20] The key usage statistics of legal information sites are indicated below:

Table: European users of legal databases (n=163)

Databases used

Governmental

Commercial

EUR-Lex

Google

Never used

7%

12%

27%

5%

A few times per month

42%

21%

41%

22%

A few times per week

32%

28%

18%

30%

Daily

17%

34%

7%

41%

It is clear that non-subscription databases have a very high usage rate, at 95% for Google and 93% for government (which may include proprietary). Daily use is consistent between Google and commercial databases, which is unsurprising as 63% of survey respondents are legal professionals. This shows that the hybrid use thesis holds true – lawyers use lots of different databases.

Satisfying an appetite?

The appetite for a new open access to law tool is there, it appears. This inspired the Openlaws.eu project, a collaboration between universities in England, Netherlands and Austria,[21] and web developers with legal informatics experts in Austria, Italy and Netherlands. Part of the project is the code camp in Salzburg (see @openlaws) while the part led by myself and colleagues at Sussex, London School of Economics and Amsterdam looks at the conditions for open access to law: the state of the art, so to speak.

What might be achieved? Individual parts of the puzzle are coming together, with stronger legal information institutes, more government commitment to publishing statute and case law databases in open formats, greater willingness by commercial publishers to experiment, and more law firms investing in open publishing of expert commentary. What is still needed is to bring these together with a social layer, to create a community which sees collaboration as more than simply checking LinkedIn every month. The value of open access is in creating a better educated legal community and general public. It is not clear how much value that will unlock, but as we start from near zero it is hardly surprising that the prospect is enticing. The 'Big data for law' project led by John Sheridan's team at the National Archives, funded by the Arts and Humanities Research Council and supported by the major commercial publishers and ICLR's resources,[22] can begin to unlock some of the potential for us to use open access to law to create exciting insights and discoveries.

Whether through FreeLawWeb, openlaws.eu now or some other start-up emerging soon, it seems that we are very close to open access to the law in the UK, and across Europe.

Professor Chris Marsden is Professor of Law at the University of Sussex and Principal Investigator in the DG Justice co-funded Openlaws.eu project.

 



[1] Thomas of Cwmgiedd, Right Honourable Lord Chief Justice (2014) IT for the Courts: Creating a Digital Future, 20 May 2014, Clyde & Co, SCL Annual Lecture http://www.judiciary.gov.uk/announcements/it-for-the-courts-creating-a-digital-future/

[2] Radboud Winkels, Alexander Boer, Bart Vredebregt and Alexander van Someren (2015) Towards a Legal Recommender System, DOI: 10.3233/978-1-61499-468-8-169 Conference: 27th International Conference on Legal knowledge and information systems (JURIX 2014), Krakow, Poland, explaining "ongoing research [is] aimed at a legal recommender system where users of a legislative portal receive suggestions of other relevant sources of law, given a focus document. We describe how we make references in case law to legislation explicit and machine readable, and how we use this information to adapt the suggestions of other relevant sources of law. We also describe an experiment in categorizing the references in case law, both by human experts and unsupervised machine learning."

[3] See Google's new case-law search engine: www.netforlawyers.com/content/google-makes-free-caselaw-search-available-scholar

[4] See Magna Carta (1297) Chapter 9, Clause XXIX on habeas corpus http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/XXIX contents et seq.

[5] http://index.okfn.org/place/united-kingdom/legislation/

[6] See http://www.civilserviceworld.com/articles/news/natalie-ceeney-appointed-chief-executive-hm-courts-tribunals-service

[7] Quoted in Holmes, Nick (2011) "Judgment Day for BAILII" interview with Sir Henry Brooke, Computers and Law, published 26 October at http://www.scl.org/site.aspx?i=ed22972

[8] Neuberger, Lord (2012) First annual BAILII Lecture: "No Judgment - No Justice" 20 November 2012 at http://www.bailii.org/bailii/lecture/01.html, citing Lindley N. (1885) The History of the Law Reports 1 LQR 137, 149

[9] Lachance, Colin (2011) "$34 Well Spent", Slaw Guest Blog July 28th 2011 at http://www.slaw.ca/2011/07/28/colin-lachance-34-well-spent/

[10] Holmes, Nick (2011) supra n.5

[11] McGrath, Paul (2014) "The future of law reporting", Internet Newsletter for Lawyers, July/August http://www.infolaw.co.uk/newsletter/ at pp.1-3.

[12] McGrath, Paul (2014) "The end of the road for the Common Law?" ICLR Blog Posted on 30th Apr 2014 in Law Reporting at http://www.iclr.co.uk/end-road-common-law/

[13] Standage, Tom (2014) Social Networking in the 1600s, New York Times 23 June, at http://www.nytimes.com/2013/06/23/opinion/sunday/social-networking-in-the-1600s.html

[14] Chui, Michael with James Manyika, Jacques Bughin, Richard Dobbs, Charles Roxburgh, Hugo Sarrazin, Geoffrey Sands and Magdalena Westergren (July 2012) "The social economy: Unlocking value and productivity through social technologies", Report: McKinsey Global Institute, at http://www.mckinsey.com/insights/high_tech_telecoms_internet/the_social_economy

[15] See variously Susskind, R. (OUP, 1987) Expert Systems in Law, Susskind, R.  (OUP, 1996) The Future of Law; Susskind, R.  (OUP, 2000) Transforming the Law, Susskind, R. (OUP, 2008) The End of Lawyers? Rethinking the Nature of Legal Services, Susskind, R. (2013) supra n.37, all Oxford University Press.

[16] There were (in 2012) 770,000 individuals claiming to be lawyers on LinkedIn, making it the fifth largest professional group on the network. See Your American Bar Association (2012) "LinkedIn: How to grow, nurture your network and obtain results", at http://www.americanbar.org/newsletter/publications/youraba/201205article01.html

[17] Excluding the American Bankers Association (with 56,000 members) of course.

[18] Barrett Paul M. (2014) "A New Social Network Entices Lawyers With Anonymity", Bloomberg Business Week Technology, 6 October at http://www.businessweek.com/articles/2014-10-06/do-lawyers-need-an-anonymous-social-network-this-startup-thinks-so

[19] To take part in the survey, visit https://docs.google.com/forms/d/1MVdScU8Unm0sdNBXsTgMM2A36TPvnlduMsjdIWo4DLE/viewform

[20] See full results updated in real time at Openlaws (2014, undated) Survey Results Collated n Google Document,  https://docs.google.com/forms/d/1MVdScU8Unm0sdNBXsTgMM2A36TPvnlduMsjdIWo4DLE/viewanalytics Note that the vast majority of responses were received in May 2014. Survey was open, advertised largely via Twitter and email.

[21] See Littera, G, Sartori, L, Dini, P and Antoniadis, P (2014). From an Idea to a Scalable Working Model: Merging Economic Benefits with Social Values in Sardex, Inaugural WINIR Conference, Greenwich, London, 11-14 September. http://eprints.lse.ac.uk/59406/; Clemens Wass, Paolo Dini (LSE) Share PSI 2.0 conference Lisbon http://www.w3.org/2013/share-psi/workshop/lisbon/report

[22] Sheridan,  John (2014) "Big Data for Law", Internet Newsletter for Lawyers, March 2014 at http://www.infolaw.co.uk/newsletter/2014/03/big-data-for-law/

Published: 2015-02-13T11:29:05

    1 comments

    • The endnote links need fixing here, Ed.
      Nick Holmes, 10:51:45 28/02/2015

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