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14 March 2024updated 15 Mar 2024 10:46am

Let’s open-source the law

England’s legal corpus could hold the key to competitive economic advantage.

By Alec Thompson

This article was the runner up in the TxP Progress Prize, a new blog prize in partnership with Civic Future and New Statesman Spotlight, encouraging responses to the question: “Britain is stuck. How can we get it moving again?” See here for the full list of winners.

With a few small reforms, the English and Welsh legal system could be significantly more competitive. Law is not only central to social and technological progress, it is an area in which Britain has a significant comparative advantage. And Britain is unusually well-placed to take advantage of new technology, such as generative AI and large data analysis.

Traditionally, the academic discipline of “progress studies” has ignored law as a field of improvement. This isn’t surprising – economics treats law as a “transaction cost”, an additional expense arising from the process of making bargains that ideally could be minimised or even removed altogether. It is treated essentially like friction in a rocket launch.

But doing so, especially in the British context, is a mistake. Legal systems are central components of all existing market economies, and in this regard the English and Welsh legal system is exceptionally successful. England has several of the world’s largest law firms. It has a well-respected profession and judiciary, and receives a huge volume of business via choice-of-forum clauses in contracts (when drafting a contract, parties can agree on the laws and procedures that will govern any disputes arising regarding its performance; England is a popular choice for both its substantive legal rules and legal procedures). Legal services are one of the UK’s largest service exports and constitute an important source of soft power. Competitive advantage is never assured, however, and global law firms are in constant competition with each other and with alternative dispute-resolution services.

Markets change. For the first time in 200 years a credible alternative to existing legal services has been developed. A “law-tech” product suite ranges from contract management software, document reviewers and general paperwork tools, to more ambitious proposals for low-cost AI-generated legal advice. The market for these tools is already huge: legal tech companies are now valued in the billions and are procured by most law firms.

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Meanwhile, new developments in large language models (LLMs) will become increasingly relevant. Law is a social technology that runs on natural language. Legal systems contain a vast, highly complex textual corpus related to a single, centralised discipline. When it comes to training legal models, these masses of text-as-data are essentially natural resources that each nation possesses exclusively for its own benefit. The crucial question now, as with all resources, is what to do with them, and how to make them accessible.

What if all English case reports – current and historic – were made available to the public for free? Currently, the majority of this immense body of text is controlled privately by two companies: the charity known as the Incorporated Council of Law Reporting (ICLR), and a company called the All England Law Reports. Both charge high fees for access and restrict how cases can be used. Unlike in some US states, neither are sanctioned by the courts as the sole and exclusive reporter of legal cases, but they nonetheless have an effective monopoly on the legal corpus. This is one of the world’s oldest continuous bodies of text dealing with legal cases and would be invaluable for creating LLM-powered legal tech. A public, machine-readable version of the law-reporting corpus available to anyone who wants to use it would be of enormous benefit.

Public access would allow researchers and innovators to train new (English) legal tools, such as tech for giving legal advice and predicting court decisions. This would vastly reduce the financial and time-cost of legal services, reducing transaction costs (which are considerable) and improving access to justice for all manner of clients. The success of these tools might also stimulate more extensive text production, such as the publication of case reports at every level of adjudication and pre-litigation. More ambitiously, if this technology reaches a sufficient level of reliability, the government could offer it as an optional, alternative form of dispute resolution in civil cases. These developments would have the potential to make the English legal system into the most dynamic and advanced in the world.

England has unique advantages in terms of legal AI. First, its legal corpus. As a common law system, English court decisions make law, and are therefore recorded in detail by court reporters. These reports are rich, detailed stores of legal argumentation, history and analysis. Civil law countries, on the other hand, rely extensively on legal codes. While these codes and their academic commentaries are long, they are far shorter than the total mass of text contained in the complete English law reports.

England also compares favourably with other common legal systems. It has a culture of data storage (going back to the 12th century), pre-dating the others by hundreds of years, and is (legally) unbroken by revolution. Sixteenth-century cases are still cited in court. Consequently, England has a larger total corpus of useful, relevant material than virtually any other common-law country.  The US is an exception, although the country’s fragmentation into separate states means that there is no comparable single corpus. As with coal, England is richly endowed with the legal resources necessary for the next industrial revolution. Unlike coal, these resources are controlled by two organisations who do virtually nothing with them.

Second, England has a tradition of market-oriented reform in the legal system. Historically, English judges and lawyers have regarded litigants as “clients”. In the 16th century, there were three legal systems all operating side by side competing for client business. In the 19th century, this service-provision mentality led to extensive court reforms, such as the establishment of the county courts. This reform is notable for being choice-driven. It allowed litigants – “the customers” – to choose their cases to be heard by a judge alone in place of the jury. English lawyers still see themselves as service providers when it comes to private law. If the client wants AI-generated advice, then firms will willingly serve this need by including it as part of their suite of “legal services”.

Third, in England, much like the US, we accept the use of “data mining” – computer analysis to derive patterns, trends and predictions, from large bodies of data – on court judgements. Civil law countries such as France have already banned such techniques. One reason is because civil law countries typically assume that judges simply apply the law (found in codes) rather than make it with their own discretion. Text-mining threatens to undermine this fiction by revealing judicial foibles. Conversely, English lawyers accept that judges make law with their own personal political and moral beliefs, and are therefore more accepting of data analysis in judicial decision-making. What does this mean? In addition to possessing unparalleled raw textual resources, we also have the right cultural framework to make use of them. Combine this with England’s economic size, strong research base and impressive legal market, and there is a clear national advantage.

It is rare for so much to be achievable with such a modest reform. Merely moving the recording and official reporting of legal cases from a small private organisation to a national one would open up England’s unique advantages in legal tech.

[See also: Chilean telexes and the allocation problem]

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