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Should the law be free?

Should the law be free?

Posted by justis1 | 01 October 2014

There are many ways to learn about the law. For university students they attend lectures and seminars, trawl through textbooks and casebooks, and occasionally trek to the library to sift through the archives of old case reports; more often filtering through relevant and irrelevant cases from the comfort of their student dorms on a laptop with IP recognition their best friend.

For those in practice the law can be a thing mainly held in their heads. Most law firms and chambers subscribe to online resources; others have in house libraries and for those still located in Inns the libraries can be a useful source. The law can seep into our subconscious; from newspapers reporting famous or gruesome cases to news coverage of politicians and the most intriguing legislative amendments. When it cannot be accessed elsewhere public libraries still often proffer subscriptions to online cases and as a last resort courts often house the original transcripts.

However the objection is still often raised that the law is still not accessible enough and further that it should be available for free.

The argument that the law should be available for free offers much weight. It is teamed with the notion of justice for all and the idea of an open and accessible justice system. Theoretically the law is free; and for those who wish to access it whether through a public library, the court website or the court archives there is a way. However as our attitudes and pace of life quickens, people want information more quickly, easily and comprehensively.

There have been attempts to promote free platforms. In the US the Free Law Project was founded by Brian Carver and Michael Lissner to support open access to the law and to develop open-source legal research tools. The tools on the project include daily notifications about legal decisions and citator which allows layers to trace the history of cases.

The FLP felt it was important for the public to be able to access important court decisions and to see how statutes had been applied. Lissner feels strongly that “legal materials have been in the hands of the few, denying legal justice to the many.” The aim of the project was to ease difficulty for those engaging in a legal dispute, whether lawyers or pro se litigants.

In the UK and in other jurisdictions, Bailii, Auslii, Saflii and others work to provide access to free case law. However all these services are hindered by one aspect; they are limited in coverage. And in a common law system where it is of the utmost importance to know the precedent setting cases and any dissenting opinions, a lack of comprehensiveness can be a fundamental flaw to relying on such services.

Therefore we find ourselves back at step one. Though case law is in the public domain the law cannot be free, the money that goes into transcribing court judgments, putting them online, cross-referencing them and  making them easily searchable takes time, and most significantly money. Therefore researchers are left with the decision to seek out print reports, rely on scatty free coverage or to pay for access.

There is the option that payment for such online coverage could be covered as a national expense. However the sheer amount of work involved makes the option both economically and logistically difficult and expensive.  As legislation.gov.uk shows, government website can provide valuable resources however their limited capacity means that changes cannot always be updated as soon as they occur.

There seems thus to be only one option. Whilst the law remains free in essence for those who wish to access it quickly and easily, assured of its comprehensiveness a subscription service is required. However it is not correlative that this must be viewed as a bar to justice and access. With a subscription service, as with any modern technology, what is paid for is the time saved, the benefit derived and the ease of access. Case law is similar in many ways to natural resources, it is usable in its natural form but there will always be moves to utilise and enhance it.

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