Annotating the law
This last week, Hypothes.is coordinated our second “tiger team,” convening communities likely to have a strong interest in open annotation, interaction, and new forms of access. Our first tiger team was on journalism; our most recent event, on annotation and the law, was co-hosted by the Berkman Center for Internet and Society at Harvard University. Berkman’s SJ Klein had a key role in organizing and coordinating our meetings, and we’re thankful for the support given by Colin Maclay, the managing director.
Over an afternoon and a day, we demonstrated several examples of working annotation, and dove deeply into some of the unique challenges of annotating the law. Attendees ranged from local Berkman staff, to open government supporters, implementers of annotation systems, and representatives of government courts.
One of the things that seems obvious after this meeting is that the complexity of legal workflow, in many different contexts, raises a broad number of unexpected considerations and opportunities. There are both technical and organizational challenges to encouraging more open annotation on law analysis, research, and practice. Most attendees agreed that addressing one would likely weaken obstructions created by the other.
There are many obvious applications for legal annotation. The Madison Project, for example, permits public markup of draft legislation. Initially the product of an all night hackathon to crowdsource Darrell Issa’s #OPEN Act, the underlying software is now open source and available for use for anyone wishing to unlock government documents. Some existing services, such as Jim Harper’s Washington Watch, which publicizes the texts of introduced bills, are also ready-made for annotation. PACER/RECAP should be able to support open annotation on court rulings, and annotations might link open access rulings at the Internet Archive with behind-the-paywall copies at PACER. Notices for Proposed Rulemaking, as published in the Federal Register, are ripe for public commentary and engagement.
The law, a publicly funded resource, is often not readily accessible. As Jim Harper of the Cato Institute observed, there is a wide range of law and regulation, as well as inter-governmental communications, that are either not published at all, or not prepared in anything close to a machine readable format. Shining light on the absence of these documents and communications, which should be automatically made public, has steadily increased their access. Almost unbelievably, the U.S. Code has only recently been made available in an XML machine-readable format, by the U.S. House of Representatives.
When law is available, there are precisely defined practices in case citation and referencing, such as the Bluebook, a resource for case citation, that predispose legal activity to rich network linkages. The importance of citations, and structured formats, encourage the development of web archiving practices and protocol enhancements such as Memento that would be able to retrieve online documents at the date/time of their citation, preserving referential fidelity.
In an interesting conundrum, the bias of the academic annotation community towards open communication and engagement is challenged by legal requirements and practice. A recent imbroglio over 50 year anonymity protection terms for tax reform proposals in the United States Congress serves as a reminder that many legal processes, suggestions, and amendments might be stunted without being able to elide contributor identity, or provide for opacity. In other circumstances, such as Family Court cases and some situations involving rape and other sex crimes, a curtain of anonymity is legally imposed. Awareness of when, and under what circumstances, such protections must be respected, invoked, or actively protected, is a critical component of online systems that hope to link case citations, rulings, and legal documents.
There are other considerations to annotations in a legal environment. The right to understand allegations and legal processes might mean that annotations need be translated with very high fidelity. In multilingual societies or jurisdictions, such as the United Nations, the European Union, and many states, the ability to support multiple languages and translations is a mandated requirement.
Legal workflow also provides multiple opportunities for optimization using annotation. For legal analysis it can enable authors to store the context of a case excerpt or citation, benefitting future elaboration. Private or group-based annotation capability would significantly benefit legal collaboration both within firms and across multi-firm legal teams. There are even occasions when counsel for both plaintiffs and defendants might have a desire or willingness to annotate shared documents, such as pre-ruling memoranda or discovery material.
Classroom applications seem particularly salient. The collaborative annotation of specific cases – describing alternative outcomes, and discussion of precedent cases and opposing circuit interpretations, for example – would greatly enhance existing paradigms for legal education. The Berkman Center’s H2O project, which imagines a platform for online access and sharing for legal materials, could natively host open annotation. Assignments could be made for different interpretive teams, or in litigation classes, competitive situations could be enhanced by online markup, providing explanation of strategy or argumentative approach. Mootus, a startup founded by Adam Ziegler, is attempting to provide open online legal argument for both students and practicing lawyers.
All of the participants ended the meeting galvanized to further the law’s annotation. Events such as this bring shared insights and encourage parties to produce interoperable tools and services. Our next tiger team, focusing more specifically on policy issues, will take place in D.C. and will build from what we learned in Boston.