Freeing Digitally Conceived Text, Part 3: The Uniform Electronic Legal Material Act is a Good First Step But Not a Major Accomplishment

Uniform Electronic Legal Material Act From the Prefatory Note's Introduction

Providing information online is integral to the conduct of state government in the 21st century. The ease and speed with which information can be created, updated, and distributed electronically, especially in contrast to the time required for the production of print materials, enables governments to meet their obligations to provide legal information to the public in a timely and cost-effective manner. State governments have moved rapidly to the online distribution of legal information, in some instances designating a publication in electronic format to be an official publication. Some state governments are eliminating certain print publications altogether. The availability of government information online facilitates transparency and accountability, provides widespread access, and encourages citizen participation in the democratic process.

Resources:

Uniform Electronic Legal Material Act (Draft for Approval)

Issues Memorandum for 2011 Uniform Law Commission Annual Meeting

Thinking about the adopted Uniform Electronic Legal Material Act, I'm reminded of a recently expressed desperate attempt by AALL President Janto to prove the "power of AALL and members." It was published on July 18, 2001 as the final paragraph of a statement in the context of back-pedalling because of the reaction to the proposed Antitrust Compliance Policy draft. Quoting from the statement (republished in full here):

AALL recently accomplished a major feat - the adoption of the Uniform Electronic Legal Material Act. This promises what could be the greatest opportunity for increased competition in the marketplace.  When adopted by the states, legal information will be widely available to the public, members of the legal profession, and start-up publishers. This is the power of AALL and members.

(Emphasis added.)

"Promises" as in an aspirational yet-to-be achieved goal, something AALL likes to promote, perhaps. "Accomplished a major feat" -- forget to mention that it took more than just AALL to get this done?

In the context of actually stimulating competition if/when adopted by making state e-law widely available for new entrants into the marketplace, I think Janto is clearly over-reaching. It is too soon for any "major feat" back-slapping celebrations. But what the heck, can't blame Janto for tossing in as puffery a concluding paragraph to try to persuade members that AALL has "power" in the statement concerning our association's latest proposed expression of antitrustism. Nice try.

The "Promise" of UELMA. All UELMA will result in, if adopted state-by-state-by-state, is the creation of multiple governmental eSilos at the state -- even, perhaps, at the state agency -- level, and reciprocal recognition of authenticated legal electronic resources between state jurisdictions that adopt the uniform act. It will not increase competition in the marketplace other than providing some undefined form of free access to government eSilos instead of commercial vendors and it will not make quality-assured primary legal resources "widely available" for start-up publishers. On the matters of quality source material in the context of a state jurisdiction that provides FTP downloading and the clean-up work involved, see Converting and Correcting Bulk-Distributed State Code Text into Well-Formed HTML: Hershowitz on His California State Code Project.

The Uniform Electronic Legal Material Act does not measure up to any "major feat accomplished" standard. While it makes clear that the state is the official publisher of authenticated e-content, UELMA does not address the matter of quality control. It is technology-neutral with respect to documentation standards and online delivery. It does not require research tools. It does not address the issue of copyright. It provides no mandate for bulk distribution. It does not incorporate a format neutral citation standard.

Of course, it does not interfere with the contractual relationship between a state and a commercial publisher when states contract for the publication of its legal material. One can only hope that adopting states require in future contacting that any such commercial publisher  provide some form of the e-content to state eSilos if the publisher was to use the content for commercial purposes. This, at least would be a both a stimulus for wide-spread adoption of UELMA and a cost-savings measure to states for implementing the Uniform Act.

If, If, If and the UELMA. The UELMA was about as successful as one would expect. There is nothing wrong with UELMA if taken in the context of the National Conference of Commissioners on Uniform State Laws' mandate. It would have been a major disappointment if the draft was proposed as a model act instead of a uniform law. So that is a plus. There are, however, too many ifs to claim UELMA is a major feat by law librarianship and documentation community standards. It is spacious for AALL to make the claims Janto does unless one is living in the Internet frontier known as the mid-1990s.  

For those of us living in the 21st century, documentation standards, information technology, and recent Gov. 2.0 initiatives, most notably LAW.GOV (which could provide what's needed to make authenticated, well-formed eLaw readily available for use by start-up legal publishers by way of bulk distribution) know that all the tools necessary to tame those Wild West days are available. It is going to depend on making right choices. Is AALL prepared to advocate for them nationally right now? Or will AALL end up catching up to the pack like it did after local chapters got involved in LAW.GOV on their own initiative?

On 3 Geeks, Greg Lambert reports on his email exchange with Phil Rosenthal, President of Fastcase, who was an observer on the committee:

Rosenthal pointed out many other issues that are hanging out there for the states to determine. Issues such as the availability and affordability of bulk downloads for vendors; issues of ensuring quality control; and, what happens if state budgets don't support the costs of preservation; states once again claiming copyright to this new format and bringing back ghosts of "official pagination" claims once again.

"If the right choices are made, having official online authenticated law will do wonders for public access, preservation, and competition. If the wrong choices are made, access to historical materials may be reduced to a level below where it was in the print-only days, and competition and innovation could be significantly stifled."

For more from this interesting post, see ULC Passes Act to Promote Authentication, Preservation and Access to State Laws and Rules.

Out of Chaos Will Order Come? The best way to view UELMA is as a first step that could lead to further developments which might produce a major accomplishment as measured by documentation and law librarianship standards. One can imagine the chaos that will be created by state adoption of this uniform law. That could lead to an important second step, namely making order out of chaos by way of Gov 2.0 iniatives such as LAW.GOV.

If widely adopted, one can also expect that commercial services will see a market for selling e-publishing and distribution solutions to the states to create and provide free access at the state eSilo level for authenticated content. [JH]

For previous installments in LLB's Freeing Digitally Conceived Text series, see:

• The Federal Government as Documentation Authenticator, FDsys as a Trusted Repository, and the GPO as a Bulk Distributor of XML Files (July 6, 2011)
• Moving Beyond Print, Commercial Online Sources and Government-Hosted eSilos (July 12, 2011)