Two significant failures persistently compromise the accessibility of the United States legal system for the general public.
One is the substantial lack of access to justice. The Legal Services Corporation estimates that a staggering 92% of the civil legal issues faced by the approximately 50 million low income Americans receive either no legal assistance or insufficient help. While some critics may suggest this figure is overstated, there is broad consensus that the legal system dramatically underserves those in need, extending beyond low income individuals to include the middle class and small businesses.
The second is the enduring failure to provide public access to the law. Primary and secondary legal materials frequently remain concealed by the commercial paywalls of major publishers, subjected to questionable claims of copyright by governmental bodies, or are so fragmented and disorganized that they become practically unusable.
Dedicated individuals, groups, and organizations are actively working to address both of these profound issues. However, the efforts often appear to proceed along separate paths, pursuing similar missions through distinct, uncoordinated strategies.
The reality is that these two travesties, and the desired resolutions, are inseparably connected. The crisis in access to justice cannot be fully solved without simultaneously resolving the lack of free and open access to the law. For many people with legal issues, the foundational step toward a resolution is simply knowing the law and understanding their rights.
This realization suggests a need for enhanced coordination and collaboration between those striving to close the justice gap and those working to liberate the law. Both efforts represent major undertakings, but as the adage suggests, there is strength in unity.
Separate Convenings
The observations prompting this reflection stemmed from two concurrent, yet disconnected, conferences. This situation echoed a similar experience, previously discussed on Human&Legal, concerning the funding disparity between developers creating legal technology for low income Americans and those serving large law firms and corporate legal departments.
This time, the two gatherings were physically close, even adjacent, but organizationally separate.
One event was Transform: Justice, a program hosted by Harvard Law School’s Library Innovation Lab. The program celebrated the full removal of commercial restrictions on the Caselaw Access Project’s collection of case law and explored the future of open access to legal information.
It was revealed only at the close of that day that the American Academy of Arts and Sciences was simultaneously hosting the Making Justice Accessible Summit, less than a mile away. That summit was part of a broader project intended to develop clear, national recommendations for closing the gap between the demand for civil legal services and the available supply.
Leaders of the access-to-law movement were thus convening at Harvard to strategize their future course, while simultaneously, just blocks away, leaders of the access-to-justice movement were conducting a parallel, unrelated discussion. Each group was largely unaware of the other.
The Law Held Captive
As an attendee solely at the Harvard program, this analysis focuses on the discussions there, where the connection between access to law and access to justice was a pervasive theme.
Carl Malamud, who has dedicated his career to making government information publicly available, emphasized this connection during his address:
“Promulgation of the law is a fundamental tenet of the rule of law, promulgation of the law is integral to free speech, to commerce among the states, to due process, and to access to justice. In the United States, the law belongs to the people.”
The law should belong to the people. However, when Malamud and his organization Public.Resource.Org attempted to publish the official statutes of the state of Georgia, the state initiated a lawsuit, alleging in its court filing that he was engaging in “terrorism.”
This dispute escalated to the Supreme Court, resulting in the 2020 landmark ruling for public access to primary legal materials, Georgia v. Public.Resource.Org, Inc., which held that Georgia could not claim a copyright in the annotations within its official code.
Four years following the decision, Malamud noted in his speech that an up-to-date copy of the Official Code of Georgia Annotated remains elusive. He stated it is still only available through LexisNexis, subject to stringent terms of use, a significant rental fee, and technical restrictions on downloading or repurposing.
“It is read only law,” Malamud observed. “It’s like a Netflix movie, which you can view on a properly registered viewer — if you have been authorized and authenticated — but guess what, don’t blink twice, as your movie may soon disappear.”
Georgia is not unique; Malamud asserts that Arkansas, Idaho, Mississippi, New Mexico, and Tennessee also claim copyright over public law.
Malamud posed a rhetorical question: “If ignorance of the law is no excuse, how can we have access to justice and due process if the law is locked behind a pay wall and subject to onerous and arbitrary terms of use by private parties?”
At the conference, Malamud proposed a solution: Congress should mandate through legislation that any governmental edict, including those issued by state and local governments, be subject to mandatory deposit within the Government Publishing Office, where they would be openly accessible to all.
Malamud cited the Full Faith and Credit Clause of the Constitution as the basis for Congress’ authority to enact such a law. While the first sentence requires that full faith and credit “shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” the second sentence states, “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
“For me, that second sentence is all about promulgation of the law, and I believe the answer is a Full Faith and Credit Act,” Malamud said. “The act would specify that any edict of government — including those issued by the states and local jurisdictions — are subject to mandatory deposit with the Government Publishing Office.”
Malamud contended that such a law would stimulate innovation in legal technology and even benefit established entities like LexisNexis, much as the absence of licensing restrictions in 1876 permitted John B. West to establish the National Reporter System.
Legal Information in Private Silos
The enactment of such a congressional mandate remains uncertain. For the present, much of the law continues to be restricted. Malamud summarized the situation by stating:
“Today, exclusive rights to our legal materials have been granted to private players, each of which hides the law in private silos. The natural resource that is our legal system, the raw materials of our democracy, have been fenced off and privatized.”
Despite this situation, many organizations and individuals are diligently working for change, as evidenced by the Harvard program. The event celebrated the culmination of years of dedicated effort to manually digitize law books, with the aim of providing free, public access to all United States case law.
The Caselaw Access Project was spearheaded by Nik Reed and Daniel Lewis, then cofounders of Ravel Law; Adam Ziegler, then director of Harvard’s Library Innovation Lab; and Jonathan Zittrain, a Harvard Law professor. It is noteworthy that the project likely would not have been possible without the initial support of Ravel Law and subsequently, LexisNexis following its acquisition of Ravel. Although LexisNexis maintained a commercial restriction on the data until recently, this was the necessary agreement that permitted the project to move forward.
The Caselaw Access Project database stands as a remarkable triumph in the history of open access. However, it represents only one component within a vast and complex structure of state, federal, and local cases, laws, regulations, and ordinances, not to mention secondary legal materials, many of which remain inaccessible to the public.
Efforts to enhance legal accessibility continue. Representatives from several organizations that have been dedicated to this work for years were present at the conference, notably the Legal Information Institute and The Free Law Project. Even for profit companies such as Justia, Fastcase, and Canada based Lexum have contributed significantly and generously to providing free access to legal materials.
Access to Justice Necessitates Access to Law
The Harvard program concluded with informal roundtables focused on the future of open access: its potential form and the path to achieving it. The Library Innovation Lab intends to incorporate the input from these discussions into a forthcoming report on access to law, envisioned as a resource for advocates promoting more accessible and open legal information in the United States.
It became evident during the roundtables that any future vision for free and open access to law is intrinsically linked to a vision of enhanced access to justice. The two are truly inseparable.
While it may seem obvious that a direct relationship exists between access to law and access to justice, they are frequently viewed as distinct concepts. One is often perceived as access to materials, while the other is seen as access to outcomes. Ultimately, achieving desired outcomes is impossible without access to the foundational materials that define the law.
The irony of the situation was striking: while driving home from the Harvard event focused on transforming justice through access to law, the knowledge that an event dedicated to greater access to justice was taking place just blocks away lingered.
Leading advocates of access to justice were reportedly present at the other summit. One can only imagine the impact if the two groups had known about each other’s meetings and dedicated even a single hour to cross pollinate ideas and strategies.
While these may, in some ways, be different fronts in the fight, they are engaged in the same war. The ultimate objective is for every person in the United States to have access to the law, encompassing both the literal body of law and the justice system responsible for its application and enforcement.
Therefore, the imperative is for these advocates to find ways to collaborate more effectively. Rather than fighting along parallel lines, they should explicitly acknowledge their shared objective and cooperate deliberately to achieve it.
