 Good morning, good morning, and thank you everyone for coming back to Harvard Law School for those of you who were here yesterday, and welcome to those who have not. My name is John Hulphrey, and I teach Internet law and intellectual property here, and I have the great pleasure of working with many people in the room, as the director of the law library. First off, Carl, I think it's appropriate that we've made a big, big, big thank you to you at the end of this 15, and thank you particularly for bringing this event here. So many ways, both personally and professionally, Carl, you've embodied the spirit of this effort, and all that is good about the possibility of the Internet, and I'm very grateful that you're willing to work with schmucks like me that have done something less than that great commitment that you have. I think that the Law.gov effort is something that is historically important. I think this is absolutely at the pinnacle of what we should be working on as a society right now, and without your leadership, we would just simply not be where we are, so thank you for that. I want to thank also from our staff, Michelle Pierce, for her leadership in putting this event together and making the Harvard Law School library part of this concluding event. Carl put to me this question of, is there a right to access in the law? Is this the right frame for talking about this fundamental issue? And I wanted first to embrace the spirit of the Law.gov process with this, which is I'm not going to give a half-hour lecture on whether there's a right to access in the law. That would be a mistake, but it's going to be interactive, so everybody's now on notice that this is going to be a totally crowdsourced session. But I think we should start with the frame. And the frame is that we're trying to put a document in front of the law school deans in the United States then to accomplish further goal, and further goal of course is the set of principles that Carl put forward set in action, the availability of primary law as defined in our country and ideally in an interoperable sense internationally, so that's our goal. But there's an interim point here, which is how do we convince law school deans to sign on to this document? And one of the things that Carl has both in the preamble and then I met it in principles is this argument about it being a right. And if you're a law school dean, many of them are constitutionalists, others are not constitutionalists but certainly think in these terms. I want us to work on how we should talk about this question and how we should put it in both a theoretical sense but also in an instrumental sense. How should we put it to these deans as people who are going to carry this message out to the courts and others who are going to be the decision makers? There are three approaches to this question and just so you know, I'm going to ask in a moment to have a sense from this group which of the three approaches is the right one and then hopefully people will take stands on these different points and we'll build out something close to a consensus. So with the basic question is there a right to access into law in the manner that Carl puts forward? I think there are at least three ways to answer it. So way number one is to say no. There's actually not a fundamental right to access into law but it doesn't matter. Not having a right to something doesn't mean we shouldn't do it for all manner of other excellent reasons. So Lorenz Lasek yesterday gave many of those reasons. I think one of the more compelling reasons is a straight economic one which is to say we create the law in lots of environments as digital documents. So imagine it's the clerk typing up the opinion of a judge. That's a digital document. Initially it's a Word document. Why is it that that's not put in an authenticated way on the web immediately? Why isn't that in fact a much more efficient mode of getting information out than printing it up in something and making multiple versions and having lots of confusion as to which is the useful one? There's a very straightforward, simple economic argument saying when you go to electronic publishing you actually save a great deal of money just on straight economics. There's a variant of that which says let's imagine it costs a little bit more to publish in this way which I don't believe it does in the long run but okay so there's some start-up costs you have to pay attention to it. If you do that there will be greater economic benefits for the society for having done it. There are a couple of studies that have been done. There's obviously more work to be done by both primary and secondary materials being available then for innovation to happen on top of it creates jobs, creates opportunity, creates greater understanding but on a straight economic basis it's worth it to do this anyway. And on and on I think there is point about innovation the kinds of things that creative people can do if they have the raw materials in the formats that Carl was talking about in an open way will have such extraordinary benefits to society that it matters not one way whether it's a right or not. So that's answer number one, no it's not a fundamental right it doesn't matter we should do this anyway for other reasons. Answer number two is yes in a strict sense this is a fundamental right in fact this is in a strict sense that would be recognizable by courts recognizable by the officials who have to make the decision to go down this road and what you should do Carl is in fact be launching a series of lawsuits you should be using the mechanism of law itself to establish to vindicate a series of rights or a single right in accessed information this is fundamental to our democracy making arguments that would be the creative type of arguments that constitutional lawyers make all the time perhaps it hinges this right to access information on the requirement the basic notion that ignorance of the law is no excuse for front right you could imagine a series of things that would be arguments that take other aspects of the law and find ways that this argument about access to the law disallows people from exercising other key obligations in a society you could imagine lots of ways to think about it but may have to be creative but yes it's a fundamental right and yes your way forward is in the court system and then I think there's a third answer which is the mushy answer somewhere between the two which says yes it's a right but it's not a right in a sense that is going to be recognized by the Supreme Court or any other court that's going to matter it's a right in a general sense it's a right that we agree to as participants in a process that we as right minded small are right minded human beings think is in fact something that we ought to do it's not for the purely instrumental functional type reasons that I mentioned initially like economic benefits it's not a right in the sense that okay it's enshrined in the constitution and you can get the Supreme Court to make the pacer paywall go down and so forth but it's a right in a general sense and that should be part of our argument that we should be grounding our arguments in this general maybe not court recognizable but nonetheless hugely important right and maybe those go along with the kind of functional instrumental type arguments in answer number one okay so I'm going to need a vote in a minute and then those who put their hands up for different things may well be called on if nobody talks to you this is the law professor's prerogative at the front of a law school classroom after all okay so number one is no it's not a right and it doesn't matter anyway other reasons to do it two is yes it's a right and it's something that Carl should invest some part of his time and all of us as community members working on this formal legal sense to go after and again it may not be you win the lawsuit but at least you bring it right you kick open the doors of justice on the basis of at least a close call kind of argument or three is yes it's a right but don't go down the legal road use it just as rhetorical measure away to a bunch of other arguments okay so how many people go with number one no not a right can we vote more than once I'm from Chicago okay so no it's not a right and it doesn't matter anyway how many people vote for this two three okay so three votes for that number two yes it's a right and yes you should go down formal paths even if not successful to press this right in a literal sense eleven for that so three for one eleven for the eleven for the eleven for the so three for one the second one and the third one yes it's a right in a general sense but not in a right in a sense that a court would recognize ten, twelve, I see thirteen so I see one double counted but otherwise it's interesting it's a very close call between two and three alright so who will be willing in this courtroom style law school classroom to make the case for number one of the three people who voted for that truly conscious are Mr. Gris I think you've been calling on Mr. Mrs. Economic people can't get access to this stuff then on some level they can't do business and I will confess to being a dual number one and number three voter simply because I don't think that so many of the problems that we have with this are based in equally valid aspects of our system so many of the practical problems that the bizarre thing that is legal publishing in the United States exists the way that it does and interoperability standards don't exist in the way that they don't in large part because of the respect that we have for such fundamental things as judicial independence which in this context starts to look a lot like judicial independence a lot of the time and for separation of powers you know if I wanted to go at it with a wave of my love impose interoperability on legal information in the United States tomorrow who would I have to be to do that top Lucy but the answer is really that you can't and no one can and in dealing with the kinds of people that you have to deal with to get I'm not sure that rights-based arguments however valid they may be and I have a great deal of respect for them are really going to get there and that is what makes me a sort of split number one number three person and is it because you don't think the argument is forceful or it's because you don't think they will work I think it reads like a lot of aspirational hot air to the sort of people who make the sort of decisions that we need to have made and where are the people who have to make the decisions to what's the oh lord I mean just where should we I mean it's it's reporters of decisions it's people who have the analogous function inside the legislative branches I think that there's great belief that these things can be made to happen from the top down but as we all know there's tremendous foot dragging in the IT stand I think you're up against the sort of attitude that Carl said earlier that he had encountered and judges saying hey look you know we rule from Olympian detachment and whoever wants to print that stuff up and spread it out the public egg but that's not what we do it's the people who do do that that we really most need to be talking to and these four categories of people the reporters of decisions that have analogous of foot dragging IT people and the judges who are ruling from Olympian detachment none of them find responsive whether forceful or not these rights based arguments that's your view that's right and the kinds of things that they will find responsive are what economic empowerment looks like it's putting money into the system I mean it would be illustrative it would be interesting to know and I don't my colleague Peter Martin does exactly what the reasoning was in Arkansas for terminated printed reports my guess is that it was seen as a budget cutting measure but that they're now starting to try to reduce other benefits as they gain experience with it I don't know these are the kinds of people who have a very very good view of the system I guess what I'm saying is that I don't think they're coming through the door arguing about rights in 2010 with state level officials who are looking at the fact that their budgets are going to cut to the point where they're cutting print reports is really going to be terribly available Other number one voters willing to build out the argument for them whether or not you are also a number three voter I think there are different audiences that need to be convinced so for example I went to saw Cass Sunstein at the office of the manager and budget he was very impressed by the economic arguments the fact that the federal government was spending tens of millions of dollars simply accessing the PACER system the potential economic benefits and that made a lot of sense to him the administrative office of the courts is very much driven by economics and you know the one thing that's going to impress the administrative office is going to be a congressional appropriation and that's very much an economic argument and so I'm a believer that the economic argument is important but you might need a little bit more than that which is why I voted for all three I think that it's also your spirit you vote for all of that everybody in working on different fronts I think that's good Well the internet was built on a theory of what's thrown on the wall of the characteristics a lot of it seems to be a stack some of it absolutely there's some jello on all the walls around here particularly the Berkman center marked out that way other number one voters or number one arguments are there other arguments beyond the economic and the innovation one that Larry emphasized yesterday that are arguments for law.gov that are not rights based arguments are there functional ones I just want to add on the economics it would be interesting to take one state and figure out what would cost to do our green because I think we don't know the answer to that question if we knew that then we're talking real dollars maybe ten million dollars and one million are real different and it seems to me that such a study would not only be what does the dream cost but what will the dream benefit what are the things that we might see derive from and what are competitive things make my sense in a state legislature is competition as between Massachusetts and other states is a powerful force and if the possibility that it will generate benefits for the society of jobs and so forth there are presumably good election here or even non-election here types of arguments and you have to do a carl did or whatever you've got to figure out what we're already spending on exactly what's the baseline it's not just a case technologically to get it up there people power or whatever the order we're all spending we're to not have it there so it's a little more complicated I think a case study approach a lot of isolated success stories out there and going and interviewing those people and saying you know can we figure out did you save money did how much did it cost you and then doing it by anecdote as opposed to you know how much does the system cost because every system is going to be different the worry about law.gov is that people embrace this and say okay well this is good we need standards and we need a standard piece of software let's form a group of all 50 states and all the executive agencies the government and let's all agree on what that software is going to do and 10 years from now that study group is still going to be meeting that's my big worry about this is that they embrace it too much there's got to be sort of doing it as we go for sure John participating in both of your arguments about you know sort of economic empowerment and innovation but I think worth distinguishing is simply the idea of improving government operation that also there's an economic piece that the government is spending a ridiculous amount of money buying its own work product there is also you know when you start looking at a nightmare frankly like regulations.gov or as regulations.gov was the last time I looked at it there is a fabulous example of a way in which not formulating a metadata standard of some sort can render a system useless there are 17 federal agencies that deal with good safety in some way and you really cannot go into that thing and look across the federal docket and say who's regulating food safety and how it's practically impossible to do because of the way that that system is concerned So Tom, very sympathetic to this but out in the hallway earlier you were lamenting the number of DTD's that were about published by the Congress seven or eight years ago what's the sort of happy meeting between not formulating any kind of a data standard and just way too many DTD's well unfortunately what you're asking to do and what you're asking people to do in that setting it is not easy you're asking agencies to abandon an exceptional I mean this is true of every metadata project that has ever been done in every field, every is that the clients always sort of look up and say you know my stuff's different and you know why is metadata librarians look I don't say like hell it is you know up to a point but there is actually some skill needed in sorting out what's different and what isn't and at the moment we have in many federal projects in many other projects in excess of exceptionalism and not much looking at okay well what's really the same now in the EU this problem has largely been solved or at least they have tried very hard to do so because they have been under some compulsion since the unification of the currency and so forth and so on to really sort of get the regulatory stuff at least if not harmonized then cross retrievable and so they can review them as it can be done I'm really very interested in your argument that looks at how much the government is spending on its own work product there's an analog to our discussions in law schools and other universities in the open access business and this sense of using open access as referring to scholarship if you think about the development process we are the talent we are the people who write the articles right and also to be the publishers the law reviews and law journals are well published by law schools by and large many of which we prop up financially in terms of subsidizing we are then primary not exclusive but primary customers of those through our libraries we buy them back and yet somehow we can't get our act together to make this information available more so to the public through an open access and frankly cheaper model of doing it it's sort of astonishing that we can't get out of our own way in the sense of a problem in car rolls open access primary all right so let's shift gears to number two there are 11 of you oh yes sir yes it does since government operates to some extent a response to interest groups I'm just thinking I'm a lawyer I'm not a lawyer there might be pushback from some lawyer's groups who are also high priests of law and making this accessible makes them less value argue I'm not saying I agree with that argument I'm just saying that it might be made so we're talking about arguments that we can make to advance this what is the how can you flip that to how this what the insight you've got here means in terms of Carl's argument oh that's the hard part I would argue in response to that that if the law is governing everybody and it should not just because you can access what doesn't mean you can have the knowledge and experience of lawyers do with interpreting it and applying it and so that there will still be something for lawyers to do that's interesting well that's a variant that's another functional argument I'm not going to flip that but Richard Suskin already has if you look at if you look at his stuff one of the points he makes is that in fact the legal system is a very scary thing for many people unlike medicine for example you don't really know you're going to need a lawyer until the lawyer tells you that you're going to need a lawyer and that for a lot of people is kind of a scary thing his view is and I think I agree with this that in hyper-regulated societies there really is a pent-up demand for what I guess we've always thought of in law schools under the heading of kind of preventive law stretching back well into the 60s that is enabled in fact when people do have easier access to the system it's a little bit like the guy who wants to fix his own roof until he finds out how hard it's going to be and you know I actually think that in fact what we would see there is some separation of demand for legal services once this stuff began to grow the thing we don't know a lot about and this comes over the heading of research actually there actually is some sort of WebMD effects taking place in client interactions with lawyers at this point and it's so a kind of in fact that's happening there's a lot of anecdotal evidence that that sort of stuff is going on there are a lot of people in the legal aid world fooling around with free service there are high price models there are people in legal services looking at what can simply be done by provision of information as opposed to interaction funds but I don't it hasn't added up anything yet but interesting there's buried in there an instrumental kind of functional argument that is quasi-economic but it's also you know it's a it's an access to justice argument that is not necessarily sort of fundamental rights based legislation but most professionals who stamp you know usually had access we've only had access to this information for example realtors are threatened by easy access to lots of online published information and so not every citizen may become an expert in law real estate healthcare but maybe just one or two and that's one or two more than would have been if there was no access to this that's fascinating very good analogy this occurs to me just as a suggestion Carol we're thinking in really functional terms about sending a document to law school deans one thing one might do would be anticipate in an FAQ for the faculty members who are going to get the pushback from the dean or though should I do this from the dean what are the questions you can anticipate from your alums right one I think might be this argument that says you're ruining the profession right you are not in fact helping the very profession that feeds supports in which you are grounded as you are breaking down the barriers between us and our clients and so forth and I think having an argument in an FAQ that you know a one paragraph no that's actually totally vaulting you know see Tom Bruce see Richard Suskind you know whatever the right way to put that is might be really useful and it sounds like spiking the FAQ but then as the document circulates and we hear the questions coming back exactly the next dean it iterates and for the next dean so a standard gloss standard gloss is your point what I'm saying is I mean you're focusing on the gloss school dean thing but even you're talking about congressional appropriations I mean I'm from New York and the trial lawyers in New York are a very powerful force in Albany and one of them is the head of the assembly and I'm sure that's true in a lot of other states so I'm just saying even on the government level when you're trying to get this appropriated or policy wise you're also you're going to face this as a lobby the deans are audience one but then there's the judicial conference in the congress and as you point out the ABA we're just beginning to engage with the ABA and they're just beginning to pay attention to this and that's the only reason I raised the issue no it's very good and the law school deans audience is the people they have to listen to and answer to are often these people in our profession too, Brent I think one answer to this it's this argument that you're taking part in that really you're just shifting the basis for which to value lawyers and not so much now about who can access the written documents or who can access the most accessible documents but rather who's got the expertise, who's got the experience in the background, totally right I mean if you haven't read Richard Zaskin's book the end of lawyers you ought to this is one of the key arguments that he makes when he's consulting to big law firms is to say look what's shifting here is where the value is in terms of what lawyers actually provide and I think it also encompasses this argument to give people just access to the raw material of the law itself doesn't make people lawyers it's not actually that helpful in some respects you have to put a lot more context and if that's all it takes then the profession is a bigger problem so let me shift gears in the next sort of 12 or so minutes that we have to the arguments starting with argument number 2 of the 11 people who said it is in fact a cognizable right and you should be going into court to get it vindicated who will make that case who's our constitutionalist here or the oral argument person yes please I want to take a quick look at the emotional established that the internet is right and they're all demanding the law and the internet must be as well and would it just be wonderfully ironic as to watch the Supreme Court decide and haggle over whether the laws of the land actually belong to the public standards okay so that will allied into the next session 2 about the ownership that Phil's doing but who will build on that I had other arguments that said although it would be a due process a predictability for someone who has charges against them to know what those charges are the penalties that they could incur or even just whether or not when you perform a specific action what the chances that you obtain those consequences would be and also based on Selena Carlson yesterday some of the courts don't have access to their own opinions in their own districts so it affects the ability of judges to have big blood outcomes for the cases that are more than based on the outcomes that have happened in the past I think that there's a slightly weaker copyright argument which is that the Constitution grants it for a limited monopoly for the purposes of innovation and useful sciences and so a monopoly by government is at least a questionable aspect in the climate today and it's questionable what kind of innovation is being granted by the land-owned governments to monopolize access to the law but then also something with the Oregon case that Carl was saying it raises the public awareness and there's an opportunity for the courts to at least co-opt movement saying that we support access as well Charlie Nessimer here I wish you were he would right now I think be jumping up and down and saying absolutely you bring this in part because you're talking past the justices you're bringing something that you want to be not frivolous in the sense that it's gotta stick and the court would actually be worth doing but the fact that it's a 20% chance a not 100% chance is sort of beside the point you take this risk you make the best argument you can your results advocate for something you believe in and that is legitimate maybe it's a due process claim or you know kitchen sink kind of approach but the point is you're talking to the people and you're talking to the people through this medium the cyberspace medium you go directly to them and you kind of do it and run around it and you make a movement through that two points one you have to 11-15 thank you the other is let's sue them and bring it up to the courts what I call the throw good martial strategy right let's do this in all sorts of places and bring it up I can't get sued and I've tried and we don't have to sue them when we posted all the building codes online I had EFF representing me obviously because we did all the public safety codes for the country and I did the plumbing codes right so we had the fire protection association and the plumbing people and the international code consortium I didn't even get a letter all we wanted was a letter saying you know what you're doing is wrong and then we could have gone in for a regulatory judgment we've investigated ways of suing the courts for their paywalls but you know we just don't have standing or at least we've been unable to find it and so that's something worth considering as we look at the legal strategy we've tried for three years and I'm fairly proud of the fact that everything we've done not even a nasty letter let alone a lawsuit the closest we got was a takedown notice from Oregon and even though they said they were going to sue us it was pretty clear they weren't going to we threatened to sue them and they said well we don't want to go to court may help here in and as you say Charlie Nesson has the point right that often the lawsuits are trying to get over to your point three which is you know even if it's not a constitutional right it may be a political right and maybe one is going to the congress to try to convince them that something needs to be done or the precedent or so there's in a strict sense yeah not at all lawyer never stop any of us keep going I'd like to play so in some ways this combines my reaction to the principle of the complex but it doesn't access to the law but sometimes it sounds like you're talking about access to the law as a document and I think the principle behind that is access to law as a process what we're talking about yesterday is understanding how to fill out the form to file a pleading even if that form is available people have access to law if they don't understand what the word from that form means the reason that all this is important is not because we're talking about copyright that's the thing in the middle of starting from a fundamental principle is that all people have access to the law as a process one of the things that you need to get access to the law as a process is a bunch of words that are written down somewhere that's just one thing of the meaning so I think as a legal or constitutional argument what you really want to say is sort of a six amendment you know getting into the right argument that says listen you have a right to counsel why do you have a right to counsel because you have a right to a fair trial access to the law is really just an extension of counsel saying you know someone's going to talk to you but you should be able to read it and I honestly think this is a national extension that's obviously a narrow question of states rights and individual rights and things like that so you can talk so why not maybe it's a wonderful TV movie and you found it and also sort of a second step above one level why I voted two and not that one or three I think is kind of talking against Tom a little bit I think that you're right that it is a many distributed political argument and obviously you should take those arguments but you're going to make those arguments 17,000 times every court every regulation everything even when you have a victory the next day it's going to be even tall and then the executive director's going to leave and there's going to be a new CIO and it's all going to be different you can fight this again and again until you have Malmö v. somebody and it's going to be the decision that you can file just like Gideon the wonderfully named Gideon that lets you make a TV movie and that's the fact and every time you walk into someone's room you can say listen this is a Gideon right we need you to do this and they'll say yeah we know it never gets up to the court every court in the world at that point says look is a good thing to do I'm not going to talk to someone I can even listen to the arguments two points quickly one is that this is just the extension of the long line of cases original newspapers and all these other cases having to do with right of access to the courts it's just the new way you access the courts and there's a long line of cases holding mostly that courts are open and their records have to be available that's the program the second point that I want to make is that Thurgood Marshall was a genius because he won you have to be careful the risk of losing you have to think about what happens if we lose and I'm not saying don't bring the case and I voted for this one but I'm just saying you have to have a contingency plan for what if we lose well that's why you need a lot of cases you can't just do one because you have to be careful right that's it so on the question of losing and the trial and answer point that you made that having the battle can be worthwhile because you can make resortable points those arguments might not hold as well here because as Carl was saying it's hard to find a plaintiff it's hard to find someone who has standing who had better lost her case she became a goddess lead there's a person that they could name a law after and so congress could say we lost it's pretty court ruled this way we're going to change the law it's hard to to galvanize a movement of when you can't identify the specific person who suffered a specific wrong so you're intent number two for that reason so I think there's a lot to be said for Carl's theory of approach actually I'm a big fan I think that you're definitely targeting different audiences with each of these three approaches number two provides the bite behind the bark essentially and I think there's a lot to be said for that at the same time I personally voted for number three because I think like you said yesterday you turned to somebody at the bar and appealed to them with this argument there's a very broad based emotional pull that it has and I think that's something that should be understood I mean I could speak directly to the I think there's a liberty interest as well here that you have a right to interact with your government that provides you a basic right to be a free citizen of the society that beats knowledge and parameters of that interaction but I also wanted to draw the analogy to the creation of the CFR before the CFR existed regulations happened in Washington no one had access to them and that's and it was a lawsuit in that went to the Supreme Court that sparked the desire for some sort of nationwide access to the regulations and that movement was led by Supreme Court justices of law schools who sometimes become Supreme Court justices in a festive circumstance a personal relationship one might want to cultivate that to bring the Supreme Court justice on board let me point out another example of that which is the the government printing office was formed in 1861 the day that Abraham Lincoln took office and it's because the records of the Congress was being published by private publishers and they weren't doing a good job they were just doing summaries they were forgetting debates and the government decided they needed an official record of the Congress or the Congress wouldn't be legitimate and so that whole CFR thing was actually a repeat of the congressional record thing almost 100 years before that wow mystery very useful well I guess the question is I mean that those two movements were both not galvanized by a lawsuit and even though I voted for number two I do think in our society today it's very helpful to have some sort of opinion to point to and say you need to do this because it says it here especially with the fragmented nature of the what we want done you know it might also backfire you know I just want to say certainly very nice thank you it's nice that frequently asked questions I want to say I think we should have another section about who knew and some of the anecdotal stuff that's come up around Lex's sitting at the table or even how the CFR was created actually allows people to plug in in different levels in our past history and what arguments they might need so besides the sort of technical questions I think we can have it's not touchy-feely but it's more letting people know there's a whole audience out there looking at this we've already got a history of doing this this isn't radical we just did it different ways we want to put together whether we send it with the document or not it's great I think you just volunteered it's great there's on number two Tom I just want to tag a couple of things I may be a little off the rails here that will never happen having to do with the nature of the kind of pushback we're liking here we're liking here there is the people will hurt themselves with this argument and on the side of I'm safe at any speed which is also the sort of web of the argument and oddly enough people have been making that argument since Cook in fact Cook himself makes it in what the 17th century that if you publish this stuff people are going to harm themselves and the bodies are not littered in the streets yet and one of the reasons that I think that I gravitate away from highly dramatic arguments about this stuff is that it is so very everyday and it does function so very well on an everyday basis if you sit in a room full of law professors and you say look there's nothing in the ADA that a carpenter can't understand and a lot of things that a carpenter needs to they'll look at you and say well what about reasonable accommodation you know just to show that they were paying attention the only answer to that is really you know what the vast majority of people in this country do not spend all day dealing in edge cases on the constitutional side of the legal system they're just trying to build ramps or whatever and if you really believe that it's impossible for people to make use of this information it would be if that were true economic life in this country would grinds well in about two days so wonderful point that in Massachusetts for those who live here about two months ago it was March 1st a new rule went to place which was a mass privacy regs and any entity of any sort including a university or business or whatever had to come into compliance with this thing and it was exactly as you're describing everybody had to build a ramp you had to figure out what to do and it turns out a relative minus president of a little nursery school basically no formal staff but they had to figure out how to comply it's February 28th like everybody else you have to comply tomorrow what are you supposed to do and the difficulty of getting the basic information of that sort in terms of how to comply was extraordinary I sat there with her as a law professor and somebody who cares about privacy this is sort of my field and actually parsing that was really important to figure out what this nursery school had to do the next day so I actually think I clip this back to what you're saying that we could solve for a lot of the 90% problems the 99% problems and you're quite right obviously the most interesting reasonable combination type things are in fact what lawyers should be doing in order that Richardson's content lawyers should be doing it's interesting oh there's number two, anyone want to make a forceful yes we should do it go for it type argument seems like there's some people who think we should but it's not as held with great conviction as I might have thought alright on to number three so this one being the yes it's a right but not in the bring it to the Supreme Court kind of way who wants to make the case for this yes Meg, excellent cold calling was about to begin so just carry yourself on others so I really like number two but I just wonder how long it will take and I feel like we've waited so long already to start on something like this but let's just stop talking and do this I don't know and what's the it well, what we're doing now figuring it out so your point is yes there are these rights but don't foreground them foreground the doing part and when you need to roll out some of these rights based arguments but they're not the centerpiece of the I mean if they could come because you don't have a brother or anything I see there is an excellent we'll send them a note and see if he wants to get a law school well I want to correct what some of you already said which is ignorance of the law is no excuse and we sort of as a common society say that and just to give you an official image and I told my staff this week is I'm part of my prime watch and it turned out that the police officer was sending the kids who were trespassing to the crime watch or the organizational meeting so we could get to know each other so I had the kids who were trespassing the landlords to DA the police who arrested him and the other people and one of the kids said I want to see the trespassing law so I know what they're not doing and the cops had a good idea and I said well there's this website that you all saw yesterday and sure enough everybody said went out to write it out and I wish I could have it on video because you know it was the landlords the police, the DA the kid asking for it and it was a great visual image all we wanted was the trespassing law but there is a need for the right of the law among everybody and I don't know how you visually paint that in the argument to something that was discussed in the last session part of the last sort of segment I heard a really interesting distinction between access to the law as such access to the law as information versus access to the law as process access to the law in the sense of justice maybe to bring it up one level are you talking about access to the information as such or is it bigger than that right now I am just saying I like the argument down here access to the documents that gets us out of some of this you know you are taking away my rights as a lawyer my right to be a lawyer exclude other people from my fabulous profession my first argument would be let's get the rights to the document we really don't care what people do with that information what we want are rights to the document then the next concentric circles are how do people do with that we have a lot of the arguments that we are bringing up which is all we want is the right to the document that's really interesting so even rhetorically you would frame it at the lower level so access to justice and access to sort of the processes out here and access to the information as such is here you would aim at this kind of lesser included piece but which is somehow more concrete more visible because of you chief than the next person really interesting one in three persons and I look at this from a very practical perspective but marketing is in a sense to the groups that want to market to first teams and then other people and that's why I left out two and not completely against it but when I think in terms of energy and resources what we want to spend our time on I'm not sure two is the best place I do think to market it to some of these groups one in three are our best arguments and I think that number three there's a lot going on internationally in different farms and we spoke about the concept of right to information as like the human right and I think that does pull in some sort of the fundamental rights issues you get in number two but I think combining one in three I think three is broad enough I think you need three with some groups like Dean's law schools because you want to bring up some of these issues that make it more tangible and bring in these issues about larger concerns about society but I think when you bring in issues that being a strict fundamental right then sometimes people aren't going to go there or commit to that but that brings in the people that might sort of see it as a fundamental right that kind of make the argument in number two with the court cases they sort of have the best of both worlds I think there's a nice gloss on my new argument and sort of with my international law thinking about I was going to push on is there a point going to the sort of universal human rights level of an argument getting out of the American exceptionalism or the Massachusetts exceptionalism for that matter or the agency exceptionalism and going one level more abstract but I want to just actually ask for one in three years one could make the argument they are mutually exclusive right the number one is no it's not actually right we should use these other arguments and three is yes it is but none in a sort of a court based sense is it the point that you want to argue in the alternative in what you want to do is to say you could have it either way you could have it with the right or without a right and you know we're going to argue first yes it is right here the things but even if you don't agree with us about that we've got all these other arguments I take it that that's I only did one year in law school but I thought that's how you frame your arguments right I just want to be sure yeah because I mean on a very practical level you can say well a lot of people are saying this and people are saying that but one thing that everyone can agree on is that the ability to comply with federal regulations is a good idea whether you're the one enforcing or you're the one who's being ground under their vote others just to get back to two in these days of budget don't you want to have some place you can point where you say I don't care that your budget is being cut this year this is something that you have to do is part of what we do to ensure that our citizens are granted this right and I think we're always going to be in a situation where you know we go to an a low level agency in a state system and you they're not going to want to provide the information because there's the start of the process the attorney general of Oregon after we did the legislature I kind of adopted Oregon the attorney general's public meeting manual is an official attorney general opinion and he asserted copyright on it and so we needless to say made a copy of it and I ended up with a phone call with the attorney general because he was getting a whole bunch of bad press and he goes you know the issue to me is not whether this should be public or not the issue to me is it's $40,000 to make this manual I'd love to make it public but I have to go to the legislature and explain to them you know now we discussed whether that 40 grand was printing costs and could they do it cheaper and all that but to him it was just a money issue in California same thing they get $800,000 a year for the California code of regulation as a royalty from the vendor so you know even if you want to give it up they got to go to the budget process so yeah having a little more than simply it's a good idea would be nice you have to do this would certainly be a helpful thing whether we can achieve that or not I don't know we might be able to achieve the moral you have to do this which is the president of the United States who the chief justice standing up and saying this is a good idea that's not binding obviously but it certainly helps you have to do that this argument are there other ways to do that besides courts do you know what I mean like policy like in terms of through the legislature uniform laws executive order but because go that route maybe without necessarily doing the courts down I have to admit that my heart lies in number two no doubt you're former B.L.A. lawyer boss lawyer one of the things I like about three is Carly out you can argue about stuff so I always go for that but the mushy answer could take advantage of lots of things that you could use in your argument one of the things that occurred to me is the fear factor if we don't take care of this ourselves government the private sector may not you know I know that they have a monetary interest but we talk about this all the time with preservation issues if we don't preserve our own material what happens if the private sector decides not to publish it anymore it becomes too expensive so that's sort of a grassroots argument I think that's a really good one I admitted when we're having those preservation conversations they're very important part of me wants to see one of these companies fail and what would happen right it's almost like you want to see that in part to say who would rush in and pick up the pieces or would somebody not and is you know what kind of a forcing function it's like the reverse of competition when competition fails what then what sort of fills that particular void that's a really really good point I mean the answer in some ways is Tom Bruce right I mean in the failure of the government the answer I hate to contemplate the problem this would be an interesting time to look at who is being served because we do have this kind of incomplete coverage now and it's skewed in various areas of the system right I mean the law of deep pockets has always been available but it is a hell of a lot easier to find stuff about securities regulation than it is to for example get the municipal dog law in Binghamton New York I know because I tried or to deal with your ramp at the nursery school on the other hand at the very lowest level at the municipal level there are private sector actors who have sort of stepped in there doing a good job so I'm sort of thinking at the moment that this view is away from people who are at that kind of lower middle portion of the court hierarchy and this is one reason why it's always seem particularly useless to me to talk about putting Supreme Court decisions if somebody is going to do that the real question is who is going to do I don't know the third administrative district in New York because I'm not sure that the private sector will step in I guess what I'm saying about it I don't know that we have to wait for a company to crash maybe they are already I think there are plenty of underserved areas now that's fascinating last comment from Stephanie then sorry I mean the example the Boston police code comes to mind having looked for it ten years ago I believe that there was some legal action taken to make that be now publicly available how are you going to bring a 1983 section of 1983 case if you don't know that they haven't called their own procedures and before you had to actually physically go to their office to get those documents sometimes because they didn't update the library version very frequently so again that speaks for some sort of legal action that's good I want to keep this on time this is actually totally instructive to me crowdsourcing and constitutional argument I like it this was fun like a class I'm actually left in a way most persuaded by a version of what my cripple said a few minutes ago which is it is crucial to make these arguments to frame them out to be good lawyers about it at the same time we have to just do it right and I think in many respects having Carl here and Tom Bruce and others who have been just doing it as well as making these arguments is deeply inspiring so thank you for this it was great and we have a break or what do you go next to alright so let me introduce my friend and colleague Phil Malone professor here at Herbert Law School director of the separate law and intellectual property