It does not seem ethical to hold a person accountable for not following a law, if they do not have free access to read that law and the various ways the court has ruled to how that law should be applied.
That defense is for particular reasons not going to work. The supposition is trivial whether the texts are paywalled or not, because the shear amount of text doesn't leave any chance to read it all.
Clearly though, reasons for the texts to be free are obvious and reasons against it are less than before the proliferation of the internet.
I agree entirely however law is like all professions where access to information is only half the equation, its application and interpretation is derived from extensive training and experience. So I'd argue that until we nail 'Google for the law', access to free lawyers at least for the poor etc is more important than access to the legal databases
If you start from the assumption that the law is whatever lawyers and judges tend to think it is, then access to lawyers is more important. If you take the egalitarian perspective that the law is the law and a lawyer is just someone particularly skilled in applying it, then a person of average eduction should be able to handle a routine legal dispute without paying a specialist. This is what people have in mind when they want to make the law more available online.
If there are laws out there that are currently applied or interpreted differently than their plain meaning as written down, that's a failure of government. Either legislators should have fixed a stupid law, or judges should have thrown it out for vagueness.
The problem is that both of your assumptions are true. The fact is that the law is constantly being discovered. To the extent that an area of law is well explored, a layperson should be empowered to handle it alone, but to the extent that it is not, it requires abilities that have not been instilled in the average citizen.
>access to free lawyers at least for the poor etc is more important than access to the legal databases
That itself is a problem, while we have public defense lawyers, we don't have public preventive lawyers (who I can call and ask if what I'm about to do is altogether legal and what can I do to avoid run-ins with the law).
That's not really the service we want because those lawyers won't be able to give definitive answers for all but the simplest cases. What I think you really want is a government sponsored law office that is given special privileges.
1. They are tasked to give well researched legal advice in all fields.
2. Their advice should be minimally restrictive.
3. If a person faithfully follows the advice of the office the office assumes criminal and civil liability.
Individuals are not capable of evaluating the law without the aid of legal professionals. Worse, individuals don't have the ability to evaluate the quality of lawyers. This system would allow individuals to be secure that they're not heading into legal gray areas or situations where the legality is truly unknown until there's a trial.
I like this kind of system because it's in the best interest of such an office to give the most accurate advice possible.
> 2. Their advice should be minimally restrictive.
> 3. If a person faithfully follows the advice of the office the office assumes criminal and civil liability.
The problem is these two are in conflict. If the office gets in trouble for approving something they shouldn't then they'll have the incentive to be overly restrictive in what they approve.
A better solution is to make this office a subdivision of the justice department and then if they say you're allowed to do it then you can't be prosecuted for it. And if they say you aren't allowed to do it then you can hire your own lawyer to appeal the decision to a court, and they get penalties for being wrong.
This sounds like a process for giving any citizen standing to challenge a law, which I think would be a very significant change to the way the system works today. It naively sounds like a good change, but I suspect there would be some ill effects - e.g, companies asking over and over about slightly different ways to manage taxes to try and find a loophole, people on both sides of the Obamacare contraception mandate trying to prove that loopholes did or did not exist in the law...
You say that like it's a bad thing. Then people would actually know what the law is.
If you don't want people looking for loopholes then don't put so many in the law. When you pass thousands of pages of tax code and then companies spend a lot of time trying to save themselves billions of dollars, what did you expect to happen? That's what happens already.
I think it would be easy to DDOS the proposed system and yes, I think that would be bad. Feel free to explain why either that would not happen or why it would not be bad.
There are several places where I strongly believe that access to the law can meaningfully improve access to justice. And I hope, through our work at Open Law Library, we can show this to be true.
1) Educated lay-people. If you have good reading comprehension, and if your problem is one many other people have faced, there is a chance the law that pertains to your situation is clear and unambiguous. Access to the law in this case means you can resolve your issue.
2) Legal services at the margin. At the high end, where you are paying an attorney hundreds of dollars per hour, that attorney is passing database costs straight through to you, but you can afford it. At the low end, legal aid clinics usually receive free or reduced cost access to the databases. However, at the margin, when you are scraping together the money to pay a $30/hr lawyer to represent you in a civil matter, neither you nor the lawyer can afford to pay. It is in these cases on the margin where access to high quality laws can make a significant difference.
3) Secondary legal sources. Many legal aid clinics put out high quality secondary sources written at a grade school reading level. Where I volunteered, we had around 100. We could have had many, many more. They don't really take that long to write and the number of people helped per hour of writing was quite high. The problem, however, was maintaining them. Each document we added to our library represented a commitment of several hours to a couple days of work quarterly or biannually to review the law and update the document. It was this maintenance commitment that limited our ability to provide understandable legal documents. This time commitment can be cut by an order of magnitude by pushing pertinent changes to the law to legal aid clinics, rather than them having to sort through all laws for pertinent changes.
4) Government opinions. Many governments have legal departments that will provide opinions on the law. These opinions are often (though not always) written with a general audience in mind, and explain a particularly complex or often misunderstood part of the law. Unfortunately, these opinions are not easily discoverable, especially if you don't even know to look for them. Open Law Library works with jurisdictions to help them coordinate publishing, linking, and discoverability across branches and departments.
Into the future, as we build the foundation of computer-readable laws, others will build tools, apps, and bots on top of this foundation that will make the law truly accessible to all.
> It does not seem ethical to hold a person accountable for not following a law, if they do not have free access to read that law and the various ways the court has ruled to how that law should be applied.
Well, that's incompatible with a common law legal system. Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition. That's the reason you'll sometimes see precolonial British law cited in US legal memorandums or court rulings - those laws literally are not part of US legal code, but they may provide persuasive precedent.
So there not always a codified law to read, but that doesn't mean people can't be expected to uphold the societal structure.
The same works in reverse. If a law exists, it's possible for the law to become legally unenforceable (for a variety of reasons, not just court rulings) even without the law being repealed. So merely providing access to the legal code doesn't actually provide a complete picture of what the law is.
Engineers want to think about the law the way they think about code - it may not always do what you expect, but Von Neumann architecture means that it's at least consistent. But that's not how the law works - it's not always clear ahead of time what the inputs are (which is why litigation is so complicated), and that's even before you account for the judgment calls that enter the picture at different stages.
> Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition.
If access to court decisions is restricted, they hardly qualify as "established by precedent and/or consensus via tradition", no?
I'm saying that the set of things that can comprise "law" in a common law legal system is impossible to define precisely. So you could always find some obscure, hard-to-obtain source documenting a legal custom that could be used as persuasive precedent.
If we stated that (say) criminal laws could not be enforced unless the defendant had access to the full body of possible codes and precedent before the crime occurred, we would literally never be able to convict a single case, ever. Because any defense attorney could just find some arcane memo and prove that the defendant could not reasonably have been expected to have access to it before the crime occurred, and that would be sufficient for excusing them of culpability. And that's not even raising the question of whether or not they could reasonably be expected to interpret and understand the text, which would be the next hurdle. (The same applies to non-criminal cases too.)
(Persuasive precedent is not binding, so it's not "law", but it's undeniably influential enough that it's necessary to understanding the law.)
I think I understand your argument from the legal perspective but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions. Sure, other restricted sources may end up incorporated but restricting acccess to actual US legal decisions feels like it only benefits those few with the access for commercial gain.
Any historically accepted source should still be available for establishing precident but that doesn't mean our legal system should conceal the decisions it has made.
If nothing else access to these decisions could be a great area of study for language processing.
>but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions.
Yes, I agree with that. And in many cases (but not all), they are - court documents are generally available for nominal processing fees, though there's a long way to go before I'd say this is all truly "publicly available without [unnecessary] restrictions".
With some notable exceptions like FISA, I don't think most of the secrecy is out of a desire to conceal law from citizens. It's largely the fact that our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
That state of it is actually quite sad, to be honest. I'm in South Africa, and I am baffled at how difficult it is to get access to the Acts that were approved by parliament and form part of the body of law. It's not even about precedent, and court-decisions, rulings, etc. Just the plain law, with all the out-dated portions removed/updated.
This makes it quite difficult for me, as an individual, to interpret and act on what the law says. Sure, we all know the "basics" of criminal law: Don't steal, hurt, go where you shouldn't, etc. But everything else (regulations) is a giant black-box of "you need to speak to a lawyer" and pay them money. There are probably hundreds of sites and blogs out there trying to help/guide people about what the regulations say, but that's a poor substitute and not something you want to rely on for anything more than mundane. There needs to be a clear, government-run, up-to-date resource that has all laws.
Sure, but rent-seeking, parasite lawyers will fight to prevent that, so that they can continue to extract money from the rest of us while being a big drag on the entire economy.
> our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
Are there ways to improve this? What do you think the hurdles to technology adoption are in this field? Is it a document formatting problem, or a hosting problem?
Do we need to create a WordPress for state and local courts to adopt?
> Well, that's incompatible with a common law legal system. Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition.
> Engineers want to think about the law the way they think about code - it may not always do what you expect, but Von Neumann architecture means that it's at least consistent.
Well, that’s why Civil Law might be better – and why most Civil Law countries already have fulltext searchable archives of all laws and decisions. (the dejure indexing engine for Germany, for example, is quite awesome).
