Should law be open source?

May 5, 2010Latest News

The pros, cons, and challenges to making legal materials publicly available for free were probed at an April 28 workshop sponsored by Duke Law’s Center for the Study of the Public Domain (CSPD).

Leading scholars, including some of the Law School’s leading open access proponents, discussed, a proposed system to provide free online access to all primary legal materials in the U.S. Participants included the main architect of the system, Carl Malamud, Andrew McLaughlin, deputy chief technology officer in the Executive Office of the President, and David Ferriero, Archivist of the United States, as well as Dean David F. Levi, Professor James Boyle, and Richard Danner, Duke’s senior associate dean for information services and Rufty Research Professor of Law.

The daylong discussion focused on the definition of primary legal materials, privacy issues, the challenges of preserving and authenticating legal materials online, and the underlying value of making those materials freely available.

Primary legal materials –– including statutes, regulations, court opinions, and hearing transcripts, among other texts –– are often hidden behind pay-for-access, password-protected portals. Backers of the idea say that making the law accessible will promote transparency and informed democratic participation.

Boyle, Duke’s William Neal Reynolds Professor of Law, likened the law to a computer’s operating system, and the movement to the programming community responsible for open-source software, which could be copied freely. “[The programmers were] deeply committed to this notion that the hood of the car should not be welded shut.”

The open-source movement initially flummoxed lawyers and economists, he said. “They said, ‘How are these people going to get paid? How is this going to be sustained as an ongoing idea?’” But making some software coding available to all engendered new and creative ideas, and eventually led to innovation, he noted.

“We should explore creatively, as the open-source software community did, ways in which one could not only make this open and public, but by which layers of activity, some for-profit, some non-profit, could be built on top of a commons of accessible material,” Boyle said.

Malamud also promoted advantages of freely accessible, searchable material, saying that legal scholars could break new ground in research if enough data from courts was made more easily available. “[Legal scholars], given the opportunity to analyze the corpus, are able to find information like ‘Is there discrimination in civil rights cases in district courts, and does that vary across the country.’”

Levi, formerly the chief United States district judge for the Eastern District of California, cautioned that privacy issues were vitally important in any discussion about making court records freely accessible online. In many civil cases, he said, the court functions as a repository for any and all materials that parties enter into the record. Far from being primary legal materials, much of that material consists of allegations and accounts about individual’s private lives, Levi said.

Court records of criminal cases and immigration cases can also be rife with private information, noting that inmates had been killed over plea bargains revealed in court records.

McLaughlin praised Malamud’s efforts with

“What I viewed as something of a windmill-tilting exercise has taken off, and it has gathered steam,” he said. “It’s been really kind of amazing.”

He and Ferriero both discussed the Obama administration’s open government initiative. “On Jan. 21, the day after he took office, President Obama issued as his first memorandum, the open government memorandum,” McLaughlin said. “It mapped out the work plan for the open government initiative… and it was built around transparency, participation and collaboration as the three organizing principles.”

The initiative is loosely aligned with the aims of, inasmuch as it embraces open government, McLaughlin said. “The broad project the first year… was really about figuring out which data we could make public,” he said. “The longer-term project is about culture change.”

That culture change may, in fact, amount to embracing ancient values, as CSPD Director Jennifer Jenkins pointed out in her presentation. She noted that a Minnesota district court had considered whether law was copyrightable in 1886. “The court wrote, in eloquent nineteenth-century language, ‘It is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws should be co-extensive with the sweep of that maxim. Knowledge is the only just condition of obedience.’”

She then discussed the ancient Roman practice of posting the law publicly. “The question I want to ask today is, in terms of public law, are we less advanced in the age of the internet, than in ancient Rome?”

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