This all started with a residential lease. A kid was getting a first place and wanted a second set of eyeballs on the contract. It’s not the first time I’ve given parental assistance of this sort but it was the worst lease I’ve ever seen. It made me wonder if, when you have two unrepresented parties and neither knows what they are doing, law libraries have any way to impact this chaos.
I expect renting an apartment falls into that category of legal activity that people do not hire lawyers for in most cases. We make lots of decisions that have legal consequences (hiring, promoting, purchasing, renting, etc.) without access to a licensed legal professional. Even if the decision-maker has a law degree, they may not necessarily have legal expertise in all of the areas in which they are making decisions (employment/labor law, commercial paper, contracts, real estate, etc.).
Individual legal problems don’t differ from organizational ones in the analysis. Something that costs more, like a house or a database license, might get more attention. But a problem with large consequences, like losing housing or a utility service, may not. We don’t always analyze legal problems well, even if we have the resources to do it.
The reality is that many legal issues never result in an issue (litigation or loss) so we ignore them. But it made me wonder: are we accepting sloppiness on the legislative side (parties can freely contract without understanding the law) with the downside that it increases the need for judicial resources to resolve the sloppiness when they occur.
I liked this look at managing risk, which highlights the difficulties of contractual risk and relies on an ISO definition (which, ironically, is pay-walled like so many regulatory codes) that says that risk is the “effect of uncertainty on objectives”. An element of risk management, though, is the ability to impact that uncertainty. I would expect that most people who are signing a residential lease may not be in a position to alter the agreement in any meaningful way.
You might rely on contractual severability (bad clauses get dropped) but that leaves the risk. It’s better, particularly when there’s no legal knowledge or resources, for the contract to be correct up front.
Lawyers are well-positioned to rewrite contractual clauses. I’ve shared some from electronic license negotiations because not everyone is in that position even when they work for lawyers and are surrounded by legal information. If the risk tolerance is wrong, you can get lawyers rewriting contracts to eliminate risk that is improbable. But most people aren’t lawyers and not even all businesses use lawyers when they should.
Misalignment
As I reviewed the lease, I obviously kept an eye out for things that might lead to litigation or loss of housing. I have no recollection what the first few leases I signed, decades ago, actually said. But I’ve read a couple more recently and they’re mostly notable for the weird things that landlords have experienced and add to subsequent leases. If you’re not going to climb on the building roof, or have a pet, or throw your garbage off a fire escape, you may not care if those things are incorporated in your lease.
What struck me most was that there did not seem to be a standard form lease. I mean, I know they exist, because law libraries have collections that contain standard, form (precedent) residential leases. Also, you can do a web search on “form residential lease” if you do not know you can get them at a law library.
There was also frequent recitation of the law and references to the state revised code. They were wrong citations, either completely wrong or mis-cited. The whole point of a citation system is to enable people to find the cited source. I reviewed a Canadian government resource that skipped hyperlinks, which would have been helpful, but also had wrong cites.
By now, the problems are piling up:
- an un- or under-represented landlord. There is no qualification to be a landlord other than to have lettable property. One doesn’t need legal representation or even a working knowledge of landlord tenant law.
- an un- or under-represented lessee who is probably less informed than the landlord, unless they’ve been renting frequently.
- a lease that was misusing legal terms of art and mis-citing legal obligations found in the relevant legislation.
A law librarian might, at this point, offer the suggestion that a law library could help solve some of these problems. And that’s true. Law libraries do “lawyer in the library” sessions, educational seminars on landlord/tenant law, and legal research education. In particular, the latter is often one-on-one and could direct people either to appropriate form resources or help highlight wrong citations.
All true and yet also a perspective that assumes one thing: that people will use a law library. That they know they have access to one, that they have the time and resources to access it (driving, time off work if the library is open M-F, 9-5), and a confidence that the investment of time will result in something that will impact their risk analysis.
The Law Library Bypassed
This is where law library context matters. Any law library that is supporting legal professionals directly has different challenges from one that is supporting clients and those without legal representation. But there are parallels.
One is that people may or may not know that your law library exists. You may be able to remedy this with sustained marketing. As your potential audience gets larger, and your ability to interact directly with your audience gets harder, even marketing may not help.
Awareness is only one step, though. For different reasons, legal professionals and others may opt out of using a law library. It could be a belief that they feel they can operate without a library or librarian. They may have done a risk analysis and decided that potential outcomes didn’t require the investment of professional (lawyer | librarian) support.
The absolute best case is that the law library is accessible, the person needing access is aware of it, and the library is able to deliver point-of-time services to answer the immediate legal need. Everything else is a distant second:
- educational sessions are great but good legal research requires experience and repetition, something neither lawyers nor self-represented parties may have. Legal information will deteriorate without use.
- continued physical collection and space focus reduces accessibility. US public law libraries are often county-based, which is great unless you live outside the county seat. In Canada, you may be hundreds of kilometers from a law library, which is unlikely to be publicly accessible in any event. They are frequently in courthouses, to suit the way the legal profession of the middle 1900s operated. Courthouses are often difficult to access and, even if security isn’t an obstacle, their limited hours of operation are.
Now, I happen to know that the parties to this lease are in a U.S. county that has a very large public law library, two university law libraries, and the state law library. Neither party thought to access any of those resources. As far as I can tell, there was no attempt to Google “[state] revised code §whatever” to see if §1111(AB) actually existed (it didn’t).
My guess is that both parties felt that they had good enough access to assistance. Also, that the risk analysis meant that the likelihood of negative outcomes was small no matter what the actual language of the contract was. Legal professionals overthink risk, which can create its own negative outcomes.
The Inserted Law Library
We’ll obviously continue to do the things we’ve always done. Build collections and make them accessible. Provide research support. But there’s a world of legal issues we aren’t engaged in and perhaps will never be able to engage in.
Are there other roles the law library can play further up the information axis?
Here’s the sort of thing I was thinking, specifically based on this lease:
- shift delivery to where audiences – transient communities, university students, areas where there are lots of rental activity – emanate from, rather than from the law library
- band with other law libraries to track subject matter interactions so that we can feed that information back to landlord/tenant or tenant advocate groups since it would seem they would have a greater likelihood of being in a position of being contacted
- advocating (again with other law libraries or other advocacy groups) for the implementation of legislative standards in subject areas (housing leases, for example) that are commonly sought in our law libraries, rather than hoping parties are using commercial tools like Realtor.com’s Avail or Nolo‘s leases?
Woah, Whelan, stay in your lane! I realize we’re all about information access, and specifically legal information. But at some point do we care about whether there is a vacuum around our law library context, that may not be otherwise filled? Is there some way for us to leverage our operations and project ourselves beyond our walls?
This gap surrounding law libraries matters. If people can’t or won’t cross it to access legal information, we need to decide if we care. If we do, we need to bridge that gap (online, pushing information through alternate channels like public libraries, etc.). If we don’t, I think we are accepting that the continued diminution of law libraries.
I don’t know. I’m glad I was able to help our kid. But I realize that lots of people lack the same resources. It’s that precariousness – the inability to choose not to take on risk – that seems like something law libraries could impact. It’s the how that escapes me.