Part 1: Open Access To English Case Law (Why Bother?)

In June 2018, I'll be giving a plenary talk at the annual meeting of the British and Irish Association of Law Librarians. The topic I've chosen for the talk is open access to English case law. 

In the run up to the talk itself (primarily for the purposes of arranging my thinking on the content of the talk), I'll be releasing a series of articles on various aspects of the current state of open access to English case law. 

I published a "primer" a couple of weeks ago, in which I essentially say that the UK is running a fair bit behind the likes of Canada and the USA in the open access to case law stakes. My view is that notwithstanding the extraordinary contribution BAILII makes to the open law space, there remains considerable room for improvement. 

This is the first substantive article in the series (at least three or four more will follow). 

This article seeks to provide an outline of my thinking on two fundamental questions:

  1. What does "open access to case law" actually mean?
  2. Why bother providing open access to case law, what's the point?

What does "open access to case law" actually mean?

"Open access to case law" isn't a "thing", it's a goal. The goal, at least to my mind, boils down to providing access that is free at the point of delivery to the text of every judgment given in every case by every court of record (i.e. every court with the power to give judgments that have the potential to be binding on lower and co-ordinate courts) in the jurisdiction.

The goal sets a high bar. But it is a goal, after all. And, the attainment of that goal doesn't necessarily require any other bells and whistles. Things like summaries that explain the judgments, beautiful web interfaces, nice APIs and AI are nice to have bonuses, but they're not essential. The goal is first and foremost about providing access to the words used by the court when giving judgment in every case.

Why bother providing open access to case law, what's the point?

If I'm right about the goals of open access to case law, this question can be reformulated as: why bother providing free access to the text of all judgments given in every court? 

Well, at least four answers spring to mind.

The classic "rule of law" answer

In common law systems like ours, judges, in a broad range of circumstances, are able to make new laws or modify the scope of existing laws. There are any number of ways of casting that statement into tighter, more legalist language, but the essential point is that the words used by judges can, and often do, change the list of rules that govern what we can and can't do and the penalties we are liable to incur if we break those rules.

Because of this, in an ideal world, We, the People, would have some way of finding out what those rules are so that we're able to regulate our conduct to ensure we don't break them and to know what our rights are if we suffer as a result of someone else's breach of the rules.

The closer we move towards the "open access to case law" goal, the closer we get to being able to identify the rules we're expected to play by. 

The "equality of arms" answer

Accurately working out what the law says on issue X, Y or Z is not easy. We will often need an expert to help us determine what the law says on issue X, Y or Z and to help us understand our position in relation to it. These experts are called lawyers and lawyers cost money (generally, lots of money). 

The party to a dispute with access to a lawyer should (if their lawyer is any good) have at least two advantages over the party that does not have access to a lawyer:

  1. They will have the advantage of an advisor with expertise in the substantive law applicable to the dispute, which gives them an obvious head start.
  2. They will have the advantage of an advisor who has the advantage of multiple, industrial-strength tools to help them determine what the applicable law actually says .

The party to the dispute who lacks the means to access these two considerable advantages is therefore obviously at a correlating disadvantage. They're outgunned and probably outnumbered. There is an inequality of arms. Cuts in legal aid and, in many cases, the absence of legal aid altogether, increase the number of disputes in which one side is bringing a knife to a gunfight.

The closer we move towards the "open access to case law" goal, the more that state of inequality is reduced. Even if true equality cannot be achieved, some degree of access to the material governing the determination of who is likely to win and who is likely to lose begins to level the playing field. That's a good thing.

The "dispute reduction" answer

The ability to form a reasonably accurate view of what the rules say on issue X, Y or Z increases our ability to intelligently pick our battles and to nip disputes in the bud before they go anywhere near a court or some other costly method of dispute resolution. 

It may be hard to swallow, but if a litigant-to-be at least has the means of establishing that they probably don't have a leg to stand on (or has the other side bang to rights), more disagreements can be dealt with before lawyers get involved and things start to grow arms and legs. 

The closer we move towards the "open access to case law" goal, the greater our ability to resolve disputes before they morph into nasty, expensive, protracted and minified echoes of Jarndyce v Jarndyce

The "public information" answer

Courts are public institutions financed by public funds. Judgments are their unit of activity. Those units of activity should be open to public scrutiny and study. Judgments are public information (unless, there's a good reason to keep their content secret).

It may well be that nobody ever bothers to look at them. But that's not the point. The point is that if judgments are only meaningfully accessible on systems we have to pay to access, they're not meaningfully accessible to the public. 

Conclusion

In this short article, I've proposed a rough and ready definition of what "open access to case law" is and four justifications as to why it is a worthwhile pursuit. In the next article, I'm going to lock in on the nitty gritty of the state of open access to case law in the United Kingdom.