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On getting online state codes (mostly) right

I recently had occasion to confirm a citation to the codified statutes of Wisconsin. Wisconsin happens to be one of the minority of states that produces both a directly state-published statutory Code and a commercially published (West, in this case) annotated code.

But the quality of the online availability of the “official” code, the Wisconsin Statutes & Annotations is worthy of special praise. (I put the word official in quotes because Wisconsin law doesn’t use the word ‘official’ but does define the Wisconsin Statutes & Annotations, uniquely, as “prima facia evidence” of the law.) The State of Wisconsin Legislative Reference Bureau, which publishes and certifies the state’s printed Code, has managed to produce an online version of the Code that has many of the qualities that would allow it to serve as a free, open, and fully-functioning equivalent to the “official” code in print for most purposes. And, while it lacks the rich editorial additions of the West-published (print and Westlaw) West’s Wisconsin Statutes Annotated, this LRB-produced version of the state code is freely available online (and is relatively inexpensively available in print).

There are a number of typical problems with free and online availability of state statutory materials, especially as codified. At least some form of free, Web-based, access to the codified or compiled statutes is now provided or authorized by all 50 states. But these have tended, for a number of reasons, to be of poor quality and limited usefulness for legal research and legal citation. In many, maybe most, instances there is language on free state-Code websites explicitly disclaiming their reliability or official status. For example, on the Michigan legislature’s website the Code pages bear the warning: “The information obtained from this site is not intended to replace official versions of that information and is subject to revision.” Even apart from explicit disclaimers, there are generally other obstacles to using the sites. It is fairly rare for the Web-based codes to provide adequate indications of their exact currency (such as a specific date or session-law number through which they have been updated), or to include access to any tools or tables for verification or updating of Code language provided. In a few cases, it is unclear how actively the site is even being maintained. To the extent that citation practices require reference to volume and/or pocket-part or supplement years, it is rarely clear from the online codes to which of these print components the language on the screen corresponds. The free online codes almost never provide access to past versions of the code language. In some cases they omit clarity regarding when or how statutory language has been changed in even the recent past. In a few cases (such as Ohio’s) production of a publicly-accessible Web-based version of the Code is contracted to a third-party firm — in Ohio’s case one that is not the producer of either of the (also unofficial) print codes to which the Bluebook directs citation-sensitive users. These sometimes also carry claims of copyright not only on behalf of the state but on behalf of the third-party publishers. Especially, but not only, when third-party contractors are involved it can be hard to tell to what extent the editorial and production process for the online version of the Code matches that of more official print (or commercial online) editions.

Wisconsin’s publication of an official statutory code successfully addresses several of these challenges. While the printed Wisconsin Statutes & Annotations is produced every two years, the online version is more frequently updated as “derived from the computer files used by the Legislative Reference Bureau to produce the official printed Wisconsin Statutes and Annotations.” (In other words, the Legislative Reference Bureau is continually at work fitting new legislative enactments into the codified order, but only prepares, produces, and certifies the print publication every two years.)

But, while the online version is updated “ahead” of the official print currency year (based on the the ever-updated computer files that will eventually be used to produce the following year’s official printed Code) the website does clearly indicate the precise currency status of the freely available Web-accessible code by reference to both the date and the most recent legislative enactment through which it has been updated. For example, it now indicates that it is “published October 1, 2013″ and contains legislation through 2013 Wisconsin Act 45 (which was enacted August 5, 2013).

This “rolling” update system is highly useful for many purposes. It makes it quite possible to use the free version of this Code for actual legal research (especially given that the LRB also makes an index available online). By sharing the LRB’s own “pre-publication” codification work publicly, it also includes the raw information that third-party publishers or aggregators would ultimately need to create potential enhanced versions of this code (though, in a perfect world, they would also want well-defined structural and semantic markup).

But a “rolling” version isn’t ideal for all purposes. It is necessary, especially for permanent citation purposes, to have access to some version of a code that can be “frozen” and reproduced as current to a particular past date. In print, citation practices often rely on volume and pocket-part years to accomplish this. Because the Statutes is only a biennial publication, without pocket-part updating, it is pretty straightforward to pinpoint the publication from which to take this “snapshot.” And Wisconsin’s Legislative Reference Bureau does produce such a “frozen” version of the periodic (biennial, in this case) “official” state publication, behind a link to “Statutes & Annotations — Archive.” Each Code, listed under the “Statutes” column, is archived — from the latest 2011-2012 edition back to the 1969-1970 edition. (the Constitution, the index to the Code, and the session laws (named “Acts”) are also archived over comparable periods of time.

While it would be even better if the Legislative Reference Bureau also took technological steps to certify the authenticity of those facsimile snapshots (even with something as simple as “signed” pdf files), this is a laudable level of legislative self-archiving.

Wisconsin is not one of the states that has enacted the Uniform Electronic Legal Material Act, a uniform law which is intended to help enacting states address some (but not all) of the most problematic aspects of making their legal sources available online (and particularly to avoid pitfalls that might ensue when states start to make official material available only online). But has taken steps that should be emulated by other states, including those anticipating UELMA adoption or UELMA-like reforms.

(Now, if only the website itself, especially the table-based front page, didn’t look like as though it had time-traveled from 1998! This seems a strange oversight to me, especially in light of other really forward-looking ideas that I didn’t even mention above, such as the downloadable ePub and MOBI(Kindle) editions of the Statutes.)