Open access to English case law (a Primer)

TL;DR

  • Innovation in the open case law space in the UK is stuck in the mud
  • BAILII is lagging behind comparable projects taking place elsewhere in the common law world: CanLII and CaseText are excellent examples of what's possible.
  • Insufficient focus, if any, is being directed to improving open access to English case law

There is a tsunami of innovation happening in the legal space right now. The problem is, so far as I can tell, none of it is being directed towards improving the way the decisions of judges in the English courts are made accessible to the wider public. 

Innovation in the pursuit of achieving broader, more intuitive and freer access to English case law has laid stagnant for at least five years. It is true that the United Kingdom has BAILII and nothing that follows in this series of blog posts is intended to take anything away from how important BAILII is or how successful it has been in opening access to the decisions of judges. However, BAILII (through no fault of its own) has been unable to keep pace with the levels of really positive innovation I've observed in similar projects taking place outside the UK (notably BAILII's Canadian equivalent, CanLII, and the US freemium/premium case law platform, CaseText). 

Open access to case law in the United Kingdom suffers from the following weaknesses (this list is by no means exhaustive):

  1. Gaps in coverage: there are too many gaps in the legacy case law archive and there are too many gaps in ongoing coverage of new judgments, especially those that are given extempore. There is still a vast amount of retrospective and prospective material that can only be accessed via paid subscription services.
  2. User-friendliness: BAILII is simple enough to use if you're used to researching the law online, but there is a considerable amount that could be done to improve the service for the benefit of lay users. 
  3. Sustainability: plenty of people use BAILII, but very few of them make donations to help BAILII raise enough financial resource to pursue product development projects.
  4. No platform for experimentation or third-party development: unlike CanLII, BAILII doesn't have a public API. Third-party innovation has stalled because it is incredibly difficult to acquire access to the text of the cases.

The weaknesses I've set out above are a function of the following broader problems (again, this list isn't exhaustive):

  1. The supply chain that takes a judgment (whether handed down or given extempore) to the wider public is messy and poorly understood by the Ministry of Justice (which is worrying, because they control that supply chain).
  2. Intellectual property rights over the judgments themselves is needlessly uncertain.
  3. There is no solid model for translating the way the common law works to the sort of open case law system we need.
  4.  BAILII, in several key ways, itself acts like a publisher of proprietary content.

This post is a "primer" for a series of blogs posts I'm writing on the subject in the run-up to a talk I'll be giving at the British and Irish Association of Law Librarian's in June 2018.