Let me start off by saying that I don’t entirely agree with Malamud. As a proof of concept, the Report of Current Opinions, also known as RECOP, works. This is a project the government very well could do, given the weekly cost to Public.Resource.Org is less than $2 million per year.
However, as a stand-alone useful resource, RECOP doesn’t work. It is just not big enough.
The more information a database has, everything else being equal, the better it is. CALI’s Free Law Reporter is a good start, but with only five months of cases, its use is limited. The public can at least get an idea of what the courts are doing, which is certainly a good thing. However, citizens can’t use those cases to develop a comprehensive understanding of the law. As for the legal profession, an attorney could not write a brief with a database of just RECOP opinions, no matter how advanced the search engine was. This obviously limits the current value of a RECOP-only database such that the cost of development outweighs the current benefit.
Even if some of the public will be able to directly make good use of a RECOP-backed database on their own, the real benefits will come from innovation and competition in the market to provide tools for understanding legal information to citizens and lawyers alike. The more players in that market, the better it is for everyone.
This is why the government should step in.1 As an archive of case law grows, it becomes more valuable. I don’t know where the tipping point from alerting service / historical archive to usable research database comes, but that point would come. When that time arrives, the value of the archive would skyrocket (I’ll assume for now that the access to authoritative, updated federal and state code is worked out by then, even though there is plenty of heavy lifting there too.) It is government’s role to finance projects like this, where the future benefits to the public outweigh the current costs, even if the current benefits do not.
And what of Google?2 (and similar providers of free case law, like FindLaw and The Public Library of Law.) It has an up-to-date database with a good search engine and many old cases. That’s good, but there are too many nagging issues. For one, Google isn’t explicit enough with what is included or about the source. Two, there are no standard methods or APIs to access and use the data, and even if there were, there would be no guarantee of their permanence. Given that for-profit companies may not be able to monetize all of the value the public receives from a service like RECOP, I don’t think they should be relied upon in the long run to provide this service. So if for-profit companies shouldn’t be relied on to do it, and if the government should but won’t do it (and this is to be determined), and Carl Malamud can’t do it alone (even with the help of Fastcase, one of those for profit companies – thanks for what you’ve put into the project, and nothing personal about the not trusting you long term thing!) I guess that leaves…
1 While I agree that it’s a fundamental right for citizens to be informed about the laws of the country, that argument alone does not have a great track record of getting things done.
2 Siva Vaidhyanathan’s book The Googlization of Everything is a great influence in writing this paragraph, especially regarding the issues of private actors doing things for the public good. Read the book.