Envisioning Free Access to Caselaw

If I could snap my fingers and make it so, the Web would offer free and open access to every statute, regulation and court ruling ever issued. Unfortunately, finger-snapping doesn’t seem to work.

What does work is … work. Committed, painstaking, imperfect, incremental work over a long period of time, by people like Tom Bruce, Peter Martin, Sara Frug and their colleagues at LII. This series fittingly celebrates their extraordinary 25-year mission to ensure that “everyone [is] able to read and understand the laws that govern them, without cost.” No organization has had a more positive impact on access to law in the internet era.

Unfortunately, despite LII’s remarkable effort and impact, we remain a long way from fully realizing LII’s vision. One area that still requires substantial work is caselaw – the official rulings, decisions and opinions issued by our state and federal courts. Our official caselaw, for the most part, is locked inside print volumes and proprietary databases that offer limited access to the privileged few.

An Early, Profound Commitment to Access

For centuries our courts fulfilled their obligation to ensure public access to law by publishing and disseminating their written decisions in books, called “reporters.” The work by courts, judges, reporters of decisions, publishers, libraries and others to produce and preserve these books over many years has been monumental.

If you study the prefaces and introductory notes of early case reporters, as I have, you gain a profound appreciation for what it took to publish the law during this “book-only” legal publishing period. This was hard work, driven by a commitment to the idea that maximizing access was good for the legal profession and the public:

“It has long been a subject of complaint, in this state, that we had no reports of the decisions of our courts of judicature. The importance of having authentic reports of cases. argued and determined in the Supreme Judicial Court, the only court in the state whose decisions are considered as authorities, must be obvious to all who have any pretensions to information on the subject.” (Ephraim Williams, Reporter of Decisions, Supreme Judicial Court of Massachusetts, 1805, published in Vol. 1 of the Massachusetts Reports)

“I need not here enlarge upon the great utility, to the profession, especially, of books of Reports, nor on the necessity that exists in all countries, where the law is the rule of action, that it should be certain and known. The legislature may enact laws, but it is the courts that expound them, and if their expositions remain unpublished, much mischief and litigation must be the consequence. (Sidney Breese, 1831, published in Vol. 1 of the Illinois Reports)

“The Federal Reporter is devoted exclusively to the prompt and complete publication of the judicial opinions delivered in each of the United State circuit and district courts. It publishes both oral and written opinions, and such charges to juries as are deemed of general importance…It is believed that by this means many able and learned opinions will be rescued from a most undeserved oblivion, while greater uniformity in the interpretation of the federal statutes and the practice of the various federal courts will at the same time be secured. In would seem, therefore, that such an undertaking is not only possessed of great intrinsic merit, but, now that it has been fairly inaugurated, it actually appears to present itself in the light of a public necessity. (West Publishing Company, 1880, published in Vol. 1 of the Federal Reporter)

This commitment to access shines through in so many of the early reporter volumes we’ve digitized as part of the Caselaw Access Project I lead at Harvard Law School. My favorite example is the Reporter’s Note in Volume 32 of the Georgia Reports, which tells the amazing personal story of George Lester’s efforts to publish the law during and after the Civil War, despite being wounded as a Confederate soldier, the burning of his house and papers, and finding himself “poor and destitute” at the close of the war. It’s hard to imagine someone more dedicated to access to law.

Is the Commitment to Access Fading?

Today, books are not the only or the best way for courts to deliver on their longstanding commitment to access. The “book-only” publishing model is long gone, thankfully. Yet a “book-first” publishing model still prevails for most courts and in most jurisdictions. In this model, courts send commercial publishers their decisions, and the “official” versions of those decisions are collected into bound volumes sold by the publishers to libraries. The publishers also get unique access to the final, digital versions of the decisions, which they use to populate expensive, subscription-only databases they alone control. Meanwhile the inferior, unofficial versions of decisions are sometimes made available, often temporarily, through court websites.

The unfortunate result is that today everyone has to pay to access and read the law. Even if you pay, your access is severely limited. And this takes place in an age in which it’s all too easy for anyone to post anything online for everyone to read, for free. What would Ephraim Williams, Sidney Breese, George Lester and their contemporaries say if they knew that it was possible for courts to make every ruling immediately, freely accessible to the entire world, yet many were not doing so? They might think the commitment to access had faded.

I don’t believe the courts’ commitment to access has faded. It remains every bit as profound and intense as it was centuries ago. Every conversation I have with judges or court officials reinforces this. The access problem today does not reflect a lack of commitment. It reflects, instead, the fundamental difficulty of changing behavior inside institutions designed, for good reason, to make change hard.

This attitude toward change is evident in the slow pace with which courts adopt new technology, which Chief Justice Roberts celebrated in his 2014 Year-End Report on the Federal Judiciary. According to Roberts, “[c]ourts are simply different in important respects when it comes to adopting technology, including information technology,” and this tendency toward caution is an institutional virtue. Technology experts scoff at this claim, because many court technology systems – PACER, for one – are fundamentally defective and unjustifiably difficult to use, and have been for a long time. Far from protecting courts from bad technology, courts’ resistance to change often prolongs their exposure to bad technology.

Nevertheless, those of us who want change in the way courts publish their decisions must respect this dynamic. We must work hard to appreciate the concerns and reservations courts have, to increase awareness and understanding of technological solutions, and to demonstrate paths forward that allow courts to fulfill their commitment to access without compromising other important values.

Access in a Modern World: Digital-First Publishing

Going forward, ensuring public access means publishing and distributing court decisions online as free and open data. That is unquestionably what every court in every jurisdiction should be moving toward.

Courts should focus their digital-publishing efforts forward. They should not worry about providing access to their historical decisions. The Free Law Project, led by Mike Lissner, has already amassed and made accessible a huge, growing collection of historical decisions and other legal materials, including federal trial court opinions from PACER. Our Library Innovation Lab, in partnership with Ravel Law, will provide public access to the Harvard Law Library’s full collection of historical court decisions extracted from roughly 40,000 bound reporter volumes. While bulk access to this data will be restricted temporarily, those restrictions cease once a state or federal court transitions to digital-first publishing. Thus, by making the transition prospectively, courts can also ensure free public access to all of their historical caselaw.

Because each court system has different challenges, constraints and opportunities, we should expect to see different approaches to the transition from book-first to digital-first publishing. We should not expect a one-size-fits-all solution. But we can try to identify a common, achievable standard.

To that end, described below is a set of proposed guidelines for any state making this transition to digital-first publishing. These guidelines recognize the need for flexibility. They outline an achievable standard but do not dictate particular means or methods. For states able to administer their own digital-first publishing systems, these guidelines can inform that system’s priorities and design. For states that will continue relying on the software and/or services of a partner, these guidelines can help define an RFP and inform negotiations and contracting.

Essential characteristics:

To fulfill the court’s basic commitment to access, a digital-first publishing system should possess at least these characteristics:

1. Online – Court decisions should be issued and available online via the Web.
2. Free and Open – Court decisions should be accessible without charge and without any technical or contractual restrictions on access or usage.
3. Comprehensive – All decisions should be made available digitally in the same fashion, using the same system. If a state distinguishes between precedential and non-precedential decisions, that distinction should not affect access.
4. Official – The digital version of a decision should be the official version.
5. Citable – The digital version of a decision should be citable in and by the courts of the relevant state, using a vendor neutral citation format.
6. Machine Readable – The decisions should be made available in machine readable formats, meaning at least digitally created PDFs.

Desirable characteristics:

To maximize access and to provide a greater public benefit, a court’s digital-first publishing system should possess these additional characteristics:

1. Digitally Signed – Decisions should be digitally signed by the issuing court to permit authentication.
2. Versioned – Decisions should be issued using a version control system that makes corrections easy for the courts and transparent to those relying on the decisions.
3. Structured Data – Decisions should be issued with accompanying metadata that describes, according to a publicly disclosed standard, key attributes of the decisions, such as case name, citation, court name, attorneys, participating judges and authoring judge.
4. Medium-Neutral – Decisions should include paragraph-numbering and avoid page-dependency.
5. Archived – Decisions should be preserved, and the archived decisions should be made available online.
6. Searchable – Decisions should be searchable using keywords and metadata fields.
7. Bulk Downloadable – Decisions should be downloadable in bulk.
8. API – Decisions should be accessible to any programmer via a public, documented Application Programming Interface.

My hope is that each court system, in furtherance of its longstanding commitment to access, will work to understand these guidelines and to adopt these as priorities. As LII has shown over 25 years, however, the hard work of ensuring access to law is not the government’s obligation alone. We all – libraries, law schools, lawyers, entrepreneurs – should find ways to advocate for and actively participate in creating the world envisioned by LII, in which “everyone [is] able to read and understand the laws that govern them, without cost.” We have a long way to go to realize this vision, especially for caselaw, but we all are fortunate to have LII’s example to follow.