Brian Sheppard, who teaches at Seton Hall Law School, in an interesting blog post on Bloomberg, raises the question whether the Harvard Law School digitization project I blogged about recently, might not really help access to justice.
His worry is that neither the search tools nor visualization tools intended for the project will deal with the reality that drafting search terms is very difficult for nonlawyers, and that most of the cases that come up will not be that relevant, and will be far from the ones on which judges rely.
Personally, I would like to think of this as a challenge. I would hope that organizations that work with the self-represented will be able to work closely with Harvard, and perhaps others, to understand how the self-represented think about their cases, as compared with the ways that those who write opinions do, compared again with how trial judges do. I would hope that with that understanding we will be able to create the front end, or maybe front ends, that handle the searching well in the light of these different ways of thinking. It is my understanding that the contract between Harvard and Ravellaw provides major opportunities for organizations to work with Harvard to make such things happen sooner rather than later.
In any event, just the fact that there will be free access to all opinions will mean that self-help oriented secondary sources can link directly into the primary sources, meaning that the secondary sources can have more depth. Indeed, with electronic filing, document assembly could include links to cited cases!
I am very impressed with the potential of this project, and am optimistic that they will be able to work well with the experts on self-representation — as well as the self-represented themselves.
Thank you. For anyone else who might like to read Professor Sheppard’s paper that he references, here is the direct link which is easier than trying to navigate through the Bloomberg’s blog/article. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2659654
P.S. – I respectfully bring forth that all of us, as responsible citizens, are and must be stakeholders in the proper functioning of the adjudication process. It is unfortunate that for too long citizens have been excluded. Professor Sheppard’s points are well taken. Thank you for highlighting these very important issues. Our responsibility as citizens does not allow us to become complacent subjects and/or ignorant of our liberties which have been secured in the Constitution. We left that status long ago when we departed from England and gained our independence..
A couple of good reads:
Dissertation On The Manner of Acquiring The Character And Privileges of A Citizen of The United States by David Ramsay, 1789;
The Judicial Act of 1789
The Bloudy Tenent of Persecution, for the cause of Conscience discussed in a conference between TRUTH and PEACE. by Roger Williams – written more than one hundred years before the Constitution.or the Articles of Confederation.
I am grateful that some things have improved since 1789, and in some instances, reflect the hope that we are a more educated society who have shed a great deal of ignorance. Thank you for posting Professor Sheppard’s thoughts and for sharing his blogpost. Hopefully, this dialogue some will bring some insight on the lens of at least one citizen who has chosen to “self-represent.”
Shocking, but this prediction was just received from a friend who is knowledgeable about research in artificial intelligence: within five years software and platforms under development will transform the world as we know it. The coming technology will be able to take questions from the user, do the research, format a summary in a format that the user is most comfortable in receiving information, and deliver it to the user. It is proprietor now, but expected to be freely available within five years. One must speculate how this will affect legal research, especially by lay persons.
With regard to Professor Sheppard’s blog, I believe that he raised some excellent points in his analysis as a whole. The searchable files will only be as good as the electronic software that is created and, further, their true accessibility will be determined by whether they are “freely” accessible.. His point regarding the timing and to whom this information will be readily available without cost highlights his concerns. If the tools that are being put in place by Ravellaw are not available to all and is contingent upon a fee, it is not truly accessible to all, but only to those who can afford it. I agree with him that the likely beneficiaries of this program will be limited.
I, as a citizen, believe in our Constitutional Right to petition the Court and to obtain justice guided by the facts of a given case and the applicable Rule of Law and do take exception to Professor Sheppard’s statement that:
“It is difficult to imagine how such complexity could be made comprehensible to the untrained eye through visualization or other analytic tools. Unless, of course, we someday make our law simpler and more computer-friendly.”
Professor Sheppard’s statement raises some excellent points and presents more questions regarding the buzz term “access to justice.”
1. If our U.S. Constitution provides a Constitutional Right for all Citizens to petition the Courts for grievances and provides due process of law, why hasn’t our citizenry been educated to have the knowledge to exercise those rights?
2. Why does our “law” have to be made “simpler” and more “computer-friendly” to the public? Does this imply that we, as a nation, are so ignorant and incapable of becoming learned in our own law?
3. Why isn’t the public electronic systems “simple” or “computer-friendly” to the public since ironically, it is the public who pays for it?
4.Does Professor Sheppard’s statement imply that “lawyers” by virtue of their licensing are the only individuals who have a “trained” eye and are able to comprehend the Constitution and analyze case law and to exercise Constitutional rights on behalf of the public?
5. Is it necessary to further exclude the public from civic participation and a limited few decide what the public can and cannot comprehend when it comes to the law?
6. Should we all take a hard look at how we as a nation have transformed from a nation that believed that an educated populace through the diffusion of knowledge will better preserve its liberties – to a nation that now believes that citizens should be dumbed down to help them better understand their constitutional rights and how to exercise them?
Professor Sheppard captures the perspective of too many in the judicial system regarding their assessment of any one individual’s ability to comprehend or analyze rules of procedure, case law or common law, in order to adequately navigate their way through the “system” and to exercise their Right to petition the courts to the fullest. Though I do not agree with Professor Sheppard on his apparent assessment of non-lawyers, (other than the “scholars” identified as historians, empiricists and philosophers) I appreciate that he places into words his perspective because it is reflective of the general consensus of many in the judiciary which also overflows into court personnel.
The handicap of those who choose to represent themselves is not their knowledge or ability to analyze common law interfaced with case law, the U.S. Constitution, State Constitutions, or to use software tools that are available to them. The handicap is imposed upon them by those who have been entrusted with the administration of justice but have created an environment which provides a strong sense of entitlement and exclusivity. Too often, justice for the self-represented is served with prejudice, and the concept of a fair and impartial judiciary rarely exists. A complete overhaul of the existing behavior of those who have been entrusted with the administration of justice – not the infrastructure of the system itself – should occur with the assistance of ALL.
Right on, Mary!
Professor Sheppard can relax, they’ll figure it out. Or maybe he should worry – because they will figure it out, and without him!
Right on.Same holds true with the publicly funded entities who continue to exclude the public from accessing public informaition.
Harvard’s private decision to provide an eventual online data base to the public is admirable. Keeping things simple here. Regardless of whether Harvard opens up their own private library, first to organizations, and then to the public is only one avenue to create additional access to information to the public. Further, Harvard’s project has little to do with a citizen’s right to access public information which is funded by the taxpayer citizens. For too long, “public” law libraries, which are funded by the taxpayers, has been off limits to the public,often times tucked in obscure locations inside courthouses. In some instances, the public is not at all allowed to enter..
The public should have the right to have access to those libraries and to the assistance that librarians can offer, but, often fear that if they assist non-licensed attorneys, they might be charged with the unauthorized practice of law. I believe this solution in the world of “access to justice” for all is much simpler.
Harvard’s approach should be used as a supplement to what should already exist – public access to public information including all court decisions, whether local, State or Federal. Years ago, without the current technology, this solution would have been much more challenging, though the public’s access to the libraries and assistance from the librarians would have likely sufficed.
Though we have extraordinary technology advances, and electronically accessible records have been established by judicial branches across the nation, ,the public in many instances, remain excluded. In many instances,, case law and other information has been exclusively provided to licensed attorneys or obtained by businesses which then have created lucrative fees, further exacerbating the already monumental challenges faced by the public,
In short – an easily, verifiable solution is to press every State and local government to follow suit of the United States Supreme court where Access to case law, (although at times the site could improve) is on the right track and is accessible to ALL. there is a searchable data base available, including transcripts of oral arguments, briefs, issues presented, etc. supremecourt.gov.
Hi! I sincerely appreciate Richard’s article, as well as Mary’s and George’s comments. If you are interested in my views on the simplification of law and machines’ ability to narrow the performance gap, I’d love it if you would take a look at my upcoming paper that discusses that subject (there is a link in the Bloomberg article). Therein, I argue that there is little reason to doubt that, eventually, AI and other technologies will allow non-lawyers to do what lawyers do as a matter of routine. I also raise serious questions regarding whether a simplification would be in the public interest (particularly for Progressives). As to whether I think non-lawyers lack the sophistication or knowledge to be effective advocates in the courts of this country, I agree with Mary that the problem there is one of acculturation rather than of talent. It is almost certainly true that the smartest people in the world are non-lawyers, for example, but it is also true that the stakeholders in the system of adjudication are (or were) lawyers. This has an undeniable effect on the norms of argument and resolution.
Lastly, I share Richard’s view that this project has tremendous potential and is, in many respects, a wonderful thing. I do believe, however, that more technological development will be necessary before the massive quantity of resources will be more beneficial than burdensome. I also believe that more attention should have been paid to the presently-available free resources that do a great job covering the period of highest relevance. Thanks for reading the article!