How to Fix Government III: Universal Access to Justice

The Information Diet concludes around this theme: “Washington isn’t the land of vast, radical changes, it’s a battleship waiting to be nudged in the right direction. Let the legions of information-obese fight on the front lines, and join me in nudging the small nuts and bolts that hold the ship together.” This week, I’m writing a post a day talking about those nuts and bolts. I hope you’ll join the discussion.

Today I want to talk about the Judicial branch of government – the one we rarely talk about in terms of online engagement, civic participation or heck, even transparency. But just because I don’t talk about it doesn’t mean that it isn’t important and worthy of attention.

The judicial system is different than the other two branches of government. Unlike the presidency and Congress, there are no requirements for a Supreme Court justice. Child labor laws not withstanding, the president can nominate an infant to be a supreme court justice and provided that they pass senate confirmation, they’ll grow up in a black robe. In that regard, the branch is actually more populist than the rest, but in practice, it’s far more elitist.

In order to practice law, you’ve got to become a lawyer. Sure, everyone has the right to defend themselves in a court of law, but they’ve got to study a lot of law in order to do it right. And while much of the actual federal law is available online for free, it’s the case that the important stuff – the precedents based on prior court decisions – called “case law” is not. I suspect there are few lawyers who would argue that you could be a relatively decent attorney without understanding case law.

Instead, most of our case law and other primary source material for the law has been locked behind paywalls and inside of for-pay law libraries owned by corporations like WestLaw. Our law is commoditizeable content. If you want access to electronic court records, even from the taxpayer funded, public agency, the Department of Justice, then you end up with some access problems. It’s a revenue opportunity, not a public good, and that’s no good.

Carl Malamud, the nation’s unofficial public advocate, noted three years ago that three retail services monopolize the legal market. The Administrative Office of the Courts pays 150 million taxpayer dollars to private corporations in order to access its own legal doccuments.

Why is this bad? In a knowledge economy, it’s knowledge of the law not guns that give us the ability to defend ourselves from government wrongdoing. If universal access to the Internet means universal access to knowledge, education and opportunity, then universal access to the law means universal access to justice.

This ought not to be a wonky cause for DC Open Gov insiders. Access to the complete law ought to be fundamental right, not something you have to pay for. Equal access to the law ensures equal treatment under the law. Open primary legal materials isn’t just a civil right, it’s the primary one.

When you look at it from that perspective, it makes things like SOPA/PIPA seem trivial. Malamud set up the initiative to make this happen, but it needs more widespread public support. While heady, try and spend 20 minutes and give Malamud’s 20 minute talk on this your undivided attention. If you want to skip ahead, make sure you at least watch from the 12 minute mark.

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