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ShawnFettyFirstPaper 20 - 16 Feb 2012 - Main.ShawnFetty
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< | 1/29 UNDER REVISION. More to come as I continue to recast the problem. | >
> | 2/16 READY FOR EDITING | | | | | | 3) Lawyers cannot share their fees. | |
>
> | Lawyers cannot share fees with non-lawyers, and fee-sharing with other lawyers is restricted. The rules preserve lawyers’ monopoly on legal services, and they also prevent collusive arrangements that would harm clients. For the purposes of web-based collaboration, however, these rules greatly constrain our ability to provide collaborating lawyers with direct economic incentives, stymieing one of the primary motivations for developing new models of practice. | | | III. Conclusion
If lawyers haven’t adopted the Web, we should understand why they haven’t because the Web is the only currently foreseeable cure to one of society’s most insidious disorders: unequal access to justice. The claim that lawyers are generally slow at adopting technology is suspect, and, in any case, unsatisfactory handwaving. Precisely understanding what prevents lawyers from collaborating through the Web is critical to elevating the practice of law as a whole. |
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ShawnFettyFirstPaper 19 - 15 Feb 2012 - Main.ShawnFetty
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1/29 UNDER REVISION. More to come as I continue to recast the problem. | | |
2) Law proceeds on a definite timeline that is often externally imposed. | |
<
< |
Open-source software may develop efficiently, but it may develop inefficiently or be spontaneously dropped. Indeed, flexibility is a key advantage. In law, missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating. | >
> | The exigencies of law promote lawyers' reliance on local, established professional networks. Missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating. Building trust among collaborators takes time: a process complicated by the fact that many people rightfully have trouble trusting someone they haven’t physically met. In the thicket of representation, a lawyer cannot waste time exploring relationships that may not bear fruit. | | | 3) Lawyers cannot share their fees. |
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ShawnFettyFirstPaper 18 - 08 Feb 2012 - Main.ShawnFetty
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1/29 UNDER REVISION. More to come as I continue to recast the problem. | | |
II.Legal practice has several characteristics that confound Web-based collaboration. | |
<
< | 1) The legal duties commensurate with the lawyer-client relationship prevent lawyers from taking full advantage of the Web. | >
> | 1) The legal duties accompanying the lawyer-client relationship prevent lawyers from taking full advantage of the Web. | | | a. Lawyers have a sacrosanct duty to protect their clients’ confidences
Dispersed actors cannot effectively collaborate without sharing and transparency. Free software has flourished under this model. For a lawyer and his client, however, openness sunders the important protection afforded by attorney-client privilege. Privilege is all or nothing; once waived in any context, the protection is gone. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing, lest they too find that they have waived privilege. People rationally concerned with legal strategy will avoid this risk.
Thus, in a legal context, sharing must be carefully controlled. The trade-off is that measures which preserve privilege tend to defeat the purpose of Web-based collaboration. Such measures necessarily involve screening off the public: the very resource we hope to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Web-based, collaborative lawyering therefore treads a fine line between being too-closed-to-benefit and too-open-to-survive.
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<
< | b. Lawyers can’t easily divest full responsibility for their clients | >
> | b. Lawyers cannot easily divest full responsibility for their clients | | | | |
<
< | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. Furthermore, this responsibility can only be passed on or extinguished if the lawyer provides, depending on the circumstances, substantial justification. This, coupled with the threats of malpractice lawsuits and professional reprimand, helps secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the client’s legal rights. Furthermore, this responsibility can only be passed on or extinguished if the lawyer provides, depending on the circumstances, substantial justification. This, coupled with the threats of malpractice lawsuits and professional reprimand, helps secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. | | | | |
<
< | First, it curbs the ambition of lawyers who would use the Web to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | >
> | This unbalances risk bearing among collaborating lawyers. Primary counsel shares details of his practice and client’s situation with outside collaborators. He takes substantial risks just to start this process, yet he continues to shoulder all of the consequences. Moreover, as the Web erodes barriers between legal markets, potential collaborators are increasingly also competitors. This creates a rational concern that collaborators could poach primary counsel’s clients. An unworkable conflict of interest may not necessarily erupt, but the stage is set.
Given the worst case scenario, few will find that the advantages of collaboration outweigh the risks. | | | | |
<
< | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | | | 2) Law proceeds on a definite timeline that is often externally imposed.
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ShawnFettyFirstPaper 17 - 31 Jan 2012 - Main.ShawnFetty
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1/29 UNDER REVISION. More to come as I continue to recast the problem.
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<
< | The Problem(s) with open-source law | >
> | Lawyers don't use the Web | | | -- By ShawnFetty - 19 Oct 2011 | | | Dispersed actors cannot effectively collaborate without sharing and transparency. Free software has flourished under this model. For a lawyer and his client, however, openness sunders the important protection afforded by attorney-client privilege. Privilege is all or nothing; once waived in any context, the protection is gone. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing, lest they too find that they have waived privilege. People rationally concerned with legal strategy will avoid this risk. | |
<
< | Thus, in a legal context, sharing must be carefully controlled. The trade-off is that measures which preserve privilege tend to defeat the purpose of Web-based collaboration. Such measures necessarily involve screening off the public: the very resource we hope to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Web-based, collaborative lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. | >
> | Thus, in a legal context, sharing must be carefully controlled. The trade-off is that measures which preserve privilege tend to defeat the purpose of Web-based collaboration. Such measures necessarily involve screening off the public: the very resource we hope to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Web-based, collaborative lawyering therefore treads a fine line between being too-closed-to-benefit and too-open-to-survive. | | |
b. Lawyers can’t easily divest full responsibility for their clients |
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ShawnFettyFirstPaper 16 - 30 Jan 2012 - Main.ShawnFetty
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< | 1/29 Actively being revised. More to come as I continue to recast the problem. | >
> | 1/29 UNDER REVISION. More to come as I continue to recast the problem. | | | | | | -- By ShawnFetty - 19 Oct 2011 | |
<
< | I) Introduction | >
> | I. Introduction | | | | |
<
< | Lawyering has not joined the wide range of activities fundamentally transformed by the Web. At its peak, a lawyer’s trade is justice and good judgment, but the job ultimately consists of client advocacy, counseling, and relationship structuring. While many lawyers use the Web for advertising and research, few lawyers use it in a way that particularly affects these basic functions. | >
> | Lawyering has not joined the wide range of activities fundamentally transformed by the Web. At its peak, a lawyer’s trade is justice and good judgment, but the job ultimately consists of client advocacy, counseling, and relationship structuring. While many lawyers use the Web for advertising and research, few lawyers use it in a way that significantly affects these basic functions. | | | The Web is first and foremost a means of connecting people. In our case, this means connecting clients to lawyers and also connecting lawyers to people who can enhance their practice, be they other, similarly situated lawyers or specialists of another kind entirely. If lawyers were able to effectively harness the Web to create broader networks of legal services, we imagine they might streamline the manufacture of legal work-product, offering the pursuit of justice where there is none—or at least cheaper legal services. Legal representation would evolve as lawyers explored opportunities to meet, confer, and collaborate with colleagues regardless of distance. | |
<
< | Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the evolution and exchange of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web can uplift legal practice as a whole. | >
> | Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the exchange and evolution of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web will help lawyers both learn and collaborate. | | | Notwithstanding the possibilities, however, attempts to integrate the Web into legal practice to-date have been mostly unsuccessful. Why? | |
>
> | II.Legal practice has several characteristics that confound Web-based collaboration.
1) The legal duties commensurate with the lawyer-client relationship prevent lawyers from taking full advantage of the Web.
a. Lawyers have a sacrosanct duty to protect their clients’ confidences | | | | |
<
< | II)Legal practice has several characteristics that thwart Web-based collaboration. | >
> | Dispersed actors cannot effectively collaborate without sharing and transparency. Free software has flourished under this model. For a lawyer and his client, however, openness sunders the important protection afforded by attorney-client privilege. Privilege is all or nothing; once waived in any context, the protection is gone. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing, lest they too find that they have waived privilege. People rationally concerned with legal strategy will avoid this risk. | | | | |
<
< | 1) The openness promoted by the Web directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. | >
> | Thus, in a legal context, sharing must be carefully controlled. The trade-off is that measures which preserve privilege tend to defeat the purpose of Web-based collaboration. Such measures necessarily involve screening off the public: the very resource we hope to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Web-based, collaborative lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. | | | | |
<
< | Dispersed actors cannot effectively collaborate without sharing and transparency. For a lawyer and his client, however, total openness sunders the important protection afforded by attorney-client privilege. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing. People rationally concerned with legal strategy will not accept the risk. | >
> | b. Lawyers can’t easily divest full responsibility for their clients | | | | |
<
< | At the same time, measures that preserve privilege tend to defeat the purpose of open collaboration. Such measures necessarily involve some degree of screening off the public: the very resource we’re trying to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Collaborative lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. Tempering that balance is key. | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. Furthermore, this responsibility can only be passed on or extinguished if the lawyer provides, depending on the circumstances, substantial justification. This, coupled with the threats of malpractice lawsuits and professional reprimand, helps secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. | | | | |
<
< | 2) The Web has no clear answer to the rigidity imposed by the practical realities of lawyering.
As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences.
First, it curbs the ambition of lawyers who would use the Web to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | >
> | First, it curbs the ambition of lawyers who would use the Web to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | | | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | |
<
< | 3) Unlike other implementations of open-sourcing, law proceeds on a definite timeline that is often externally imposed.
Open-source software may develop efficiently, but it may develop inefficiently or be spontaneously dropped. Indeed, flexibility is a key advantage. In law, missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating.
III) Conclusion
I am certain the above issues must be resolved for open-source lawyering to exist. Furthermore, I believe these problems require technical solutions. Whether a technology exists to resolve them is an open question.
Shawn, I think the real
issue here is how closely to hew to the "open source" production
model. Most of the difficulties here could be characterized as
"difficulties in working collaboratively in law." From that point,
the idea of "open source" is really only an inspiration rather than a
plan of approach. We are asking how lawyers and laymen can
collaborate on large scale to produce legal work product. We are
hoping to achieve some of the advantages of production that anarchic
approaches like free software have produced in other domains.
(One of the many advantages of "free software" over "open source" as
notation for what we do is that it's much less subject to metaphor
abuse. People come to me all the time with schemes for "open source"
this and that, which need to be evaluated on their merits without
regard to how computer software is made and distributed, or even
without regard, as here, to the principled distinction between zero
and non-zero marginal cost.)
Because legal activity is fact-dependent, and—as Jerome Frank
pointed out so long ago—facts are uniquely combined and only
partially discoverable in each individual social situation with which
legal process deals, legal products have non-zero marginal cost.
Even if they are merely bitstreams, the must be adapted somehow each
time they are used.
So we are really asking here, in my opinion, not how law can be
produced the way free software is produced, but rather how lawyers
can collaborate so as to raise productivity substantially, that is,
so as to make much more legal service available to more clients at
prices they can afford to pay, while improving the quality of the
services rendered in absolute terms.
I think this question does bear close relationship to what we've been
talking about. It's more, however, like how to collaborate to
produce major motion pictures without coercively controlling
distribution. Lawyers need to be able to discover opportunities to
collaborate with distant or previously-unknown colleagues, to
evaluate the proposed collaborators involved in the opportunity, to
jointly access and manage privileged material, to generate work
product for deployment by primary counsel, and to construct billing
systems that allocate and distribute shares of fees received. They
also need to be able to think collaboratively, using the Web as a
place to evolve rather than just communicate ideas.
As you will have seen by now, I also think this questions bears a
close relationship to what we've been doing, too. I believe that
this course is part of my effort to evolve the arrangements you're
talking about. My 1L course, which you've also taken, is designed as
the introduction to thinking like that kind of lawyer. Each of my
other courses is designed to use technologies of collaboration to
induce skills that contribute to being that kind of lawyer,
intellectually. Colleagues like Conrad Johnson, Mary Zulack, and
Jane Spinak are offering other courses and teaching within the
existing program in ways that help with other aspects of training
such lawyers. As more teachers are themselves brought to relearning
how to practice law, their teaching too will change. Students,
however, should both demand and become faster change themselves,
because you need to master the existing (new, rapidly-changing) world
in order to begin your careers. The thought-road you're on is the
crucial one. Don't be decoyed by a metaphor.
| >
> | 2) Law proceeds on a definite timeline that is often externally imposed.
Open-source software may develop efficiently, but it may develop inefficiently or be spontaneously dropped. Indeed, flexibility is a key advantage. In law, missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating. | | | | |
<
< | ****Notes for revision**** | >
> | 3) Lawyers cannot share their fees. | | | | |
<
< | I want to shore up evidence I think is missing for some of my broader assertions. As discussed, I'm working on that part. | >
> | III. Conclusion | | | | |
<
< | I have given myself room to expand here. I did this because I may want to incorporate another set of obstacles, namely lawyer sociology. As space was becoming tight and because I think they are less important, I have cut those issues for now. There may not be space for them here once the logic and evidence are refined. | >
> | If lawyers haven’t adopted the Web, we should understand why they haven’t because the Web is the only currently foreseeable cure to one of society’s most insidious disorders: unequal access to justice. The claim that lawyers are generally slow at adopting technology is suspect, and, in any case, unsatisfactory handwaving. Precisely understanding what prevents lawyers from collaborating through the Web is critical to elevating the practice of law as a whole. | | | | |
<
< | I think the conclusion is insipid, but it says what I think. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. | | | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, ShawnFetty
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | |
<
< | . A thought:
I think an issue here is: what is the definition of "open"?
With FOSS, the GPL defines open: under specified conditions, are you compelled to share, with anyone who asks, certain of your work product - namely, source code.
No, Devin, the GPL is
merely one set of terms available for software that's free to copy,
modify, and share. Most free software licenses are "permissive,"
which means that they do not require modified versions to be
redistributed under the same terms as the modifier received in the
root stock she modified. This property of requiring downstream
preservation of license terms, often called "copyleft," is the
conceptual innovation of the GPL. Licenses that don't use copyleft,
like the Apache Software License, or the BSD and MIT/X11 licenses,
permit the downstream modified versions to be licensed however the
modifier wishes. This is still FOSS. So are the hybrid models in
between, like the Eclipse license, which can best be described as
"permissive as to executables, copyleft as to source code." All have
their place in the FOSS ecology. This might be a parallel to the
discussion Shawn begins here, modulo the general warning about
comparisons.
Also, neither widely-used version of the GPL requires distribution of
source code to "anyone who asks." Under GPLv3, source code must be
provided to anyone who has a copy of the executable, or binary,
version of the code. It is permissible, though not usual, to require
proof of possession of the binary. Under GPLv2, source may be
provided only to persons provided the binary, if the source is
provided "along with" the executable. Under GPLv2, executables can
be provided without source code, provided there is a written offer
for the source code included with the executable. In this instance,
only, source code must be provided to anyone who asks. Conceptually
the case is an edge condition, because distribution of source "along
with" binaries is the preferred and most common means of complying
with the license. But commercially it's very important, because
product manufacturers whose products embed GPL'd software often do
not feel inclined to put a CD of source code in the product box.
They feel it confuses their customers. So they prefer to make a
written offer, which leads to an obligation to produce source code to
all requesters.
Also, to use the "open-source" analogy, you need not only define "open" - but also the second part of the term, "source." What is the "source code" of lawyering? This leads to the question: what is the "executable program"?
I think these are conceptual challenges to using the "open-source" metaphor in the context of law. Unlike with software, there is not a clearly distinguishable "program" (which cannot be altered easily) and "source code" (the hidden mechanics that allow customization). Anyone that wants to use someone else's brief can alter sentences at will. The fundamental mechanics of lawyer-writing are human-readable (at least, lawyer-readable), and can be adjusted at will.
I think the heart of the HLS wiki and your concerns here are really primarily about the power of distributed, decentralized cooperation. In short, distributed lawyering. It's about setting up a structure so that people can cooperate asynchronously and without strong centralized coordination. In order for this to function, some openness is necessary: people cannot contribute to a project if they cannot read it. However, the heart of these structures is really about distribution, not openness, I think. An example that might concretize my point might be helpful. Take an arbitrary group of lawyers who want to work together; say, a hypothetical group of 100 lawyers at a nonprofit law firm called Pseudonymity Now. They might make a password protected wiki so that all 100 lawyers, and perhaps a few trusted interns, can contribute to a brief. They might make small tweaks at 2 am, or write whole paragraphs. This is harnessing the power of distributed working. However, it is not really "open" in the same way that the GPL, in FOSS World, compels the sharing of the (otherwise inaccessible) source code with anyone who asks under certain circumstances.
-- DevinMcDougall - 12 Nov 2011
I don't see a reason to break into the semantics of "open-source." The term expanded well-before me, though it may have been to the dismay of the programmers who originally coined it. It's just a stand in for "free collaboration, especially over the internet." Doesn't everyone already know that? Hence, open-source ecology. I don't want to say "Open Law" because Harvard has already co-opted that term. I define what I'm talking about in the very first sentence and include examples of it in practice.
I agree about your solution. It's generally the direction I'm going, but my goal here is really to set up the problems in a strategic way before I go about solving them.
-- ShawnFetty - 12 Nov 2011 |
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ShawnFettyFirstPaper 15 - 29 Jan 2012 - Main.ShawnFetty
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< | Actively being revised. More to come as I continue to recast the problem. | >
> | 1/29 Actively being revised. More to come as I continue to recast the problem. | | | | | | Lawyering has not joined the wide range of activities fundamentally transformed by the Web. At its peak, a lawyer’s trade is justice and good judgment, but the job ultimately consists of client advocacy, counseling, and relationship structuring. While many lawyers use the Web for advertising and research, few lawyers use it in a way that particularly affects these basic functions. | |
<
< | The Web is first and foremost a means of connecting people. If lawyers were able to effectively harness the Web, we imagine they might streamline the manufacture of legal work-product, offering the pursuit of justice where there is none—or at least cheaper legal services. Legal representation would evolve as lawyers explored opportunities to meet, confer, and collaborate with colleagues regardless of distance. | >
> | The Web is first and foremost a means of connecting people. In our case, this means connecting clients to lawyers and also connecting lawyers to people who can enhance their practice, be they other, similarly situated lawyers or specialists of another kind entirely. If lawyers were able to effectively harness the Web to create broader networks of legal services, we imagine they might streamline the manufacture of legal work-product, offering the pursuit of justice where there is none—or at least cheaper legal services. Legal representation would evolve as lawyers explored opportunities to meet, confer, and collaborate with colleagues regardless of distance. | | | | |
<
< | Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the evolution of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web can uplift legal practice as a whole. | >
> | Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the evolution and exchange of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web can uplift legal practice as a whole. | | | Notwithstanding the possibilities, however, attempts to integrate the Web into legal practice to-date have been mostly unsuccessful. Why? | |
<
< | II) 1) Legal practice has several characteristics that thwart Web-based collaboration. | >
> | II)Legal practice has several characteristics that thwart Web-based collaboration. | | | 1) The openness promoted by the Web directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. |
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ShawnFettyFirstPaper 14 - 29 Jan 2012 - Main.ShawnFetty
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> | Actively being revised. More to come as I continue to recast the problem. | | | | | | I) Introduction | |
<
< | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none —or at least cheaper legal services.
Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) Wexis, 2) legal reference materials, and 3) lawyering itself. In the first case, we have PreCydent, an open-source competitor to Wexis. For the second, a number of Wikipedia-law-clones have been published on the Web. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs. | >
> | Lawyering has not joined the wide range of activities fundamentally transformed by the Web. At its peak, a lawyer’s trade is justice and good judgment, but the job ultimately consists of client advocacy, counseling, and relationship structuring. While many lawyers use the Web for advertising and research, few lawyers use it in a way that particularly affects these basic functions. | | | | |
<
< | Despite these efforts, open-source law remains a sluggish movement. None of the Law-Wikis have been even modestly adopted, Precydent went belly up, and the Berkman Center’s Openlaw site appears to have been effectively decommissioned (given the dead links and other signs of neglect) sometime in 2002, just a few years after its inception. | >
> | The Web is first and foremost a means of connecting people. If lawyers were able to effectively harness the Web, we imagine they might streamline the manufacture of legal work-product, offering the pursuit of justice where there is none—or at least cheaper legal services. Legal representation would evolve as lawyers explored opportunities to meet, confer, and collaborate with colleagues regardless of distance. | | | | |
<
< | These are setbacks, but with respect to the first two facets of open-source law, workable models have been forged. Precydent was a capable product. And, while the Law-Wikis have floundered, the birth of thousands of legal blogs, coupled with a movement for free access to law, provides at least the start of an open conversation about the state of the law and legal practice. Money and lack-of-interest are problems, but they are problems with relatively simple solutions. | >
> | Lawyers need not distribute their workload through the Web (as a software developer might do) for this to be the case. Even if we assume that the individual client requires a local lawyer’s particularized care, the Web is useful for lawyers because it provides a rich environment for the evolution of ideas. Moreover, good judgment is informed by experience: an asset that is excellently shared through the Web. Thus, there is good reason to assume that the Web can uplift legal practice as a whole. | | | | |
<
< | In contrast, nothing about Openlaw is sustainable. Rejuvenating open-source lawyering requires addressing the array of professional elements working against lawyers collaborating. | >
> | Notwithstanding the possibilities, however, attempts to integrate the Web into legal practice to-date have been mostly unsuccessful. Why? | | | | |
<
< | II) Legal practice has several characteristics that are incompatible with conventional models of open-sourcing. | >
> | II) 1) Legal practice has several characteristics that thwart Web-based collaboration. | | | | |
<
< | 1) Open-sourcing’s most basic element, openness, directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. | >
> | 1) The openness promoted by the Web directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. | | | | |
<
< | Open-sourcing depends on sharing and transparency. Otherwise, dispersed actors cannot effectively collaborate. For a lawyer and his client, however, total openness sunders the important protection afforded by attorney-client privilege. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing. People rationally concerned with legal strategy will not accept the risk. | >
> | Dispersed actors cannot effectively collaborate without sharing and transparency. For a lawyer and his client, however, total openness sunders the important protection afforded by attorney-client privilege. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing. People rationally concerned with legal strategy will not accept the risk. | | | | |
<
< | At the same time, measures that preserve privilege tend to defeat the purpose of open-sourcing. Such measures necessarily involve some degree of screening off the public: the very resource we’re trying to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Open-source lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. Tempering that balance is key. | >
> | At the same time, measures that preserve privilege tend to defeat the purpose of open collaboration. Such measures necessarily involve some degree of screening off the public: the very resource we’re trying to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Collaborative lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. Tempering that balance is key. | | | | |
<
< | 2) Open-sourcing has no clear answer to the rigidity imposed by the practical realities of lawyering. | >
> | 2) The Web has no clear answer to the rigidity imposed by the practical realities of lawyering. | | | | |
<
< | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences. | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences. | | | | |
<
< | First, it curbs the ambition of lawyers who would use open-sourcing to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | >
> | First, it curbs the ambition of lawyers who would use the Web to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | | | | |
<
< | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | >
> | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | | | 3) Unlike other implementations of open-sourcing, law proceeds on a definite timeline that is often externally imposed. |
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ShawnFettyFirstPaper 13 - 27 Nov 2011 - Main.EbenMoglen
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<
< | READY FOR EDITING. See end for my own note for future drafts | | | The Problem(s) with open-source law | | | I am certain the above issues must be resolved for open-source lawyering to exist. Furthermore, I believe these problems require technical solutions. Whether a technology exists to resolve them is an open question. | |
>
> | Shawn, I think the real
issue here is how closely to hew to the "open source" production
model. Most of the difficulties here could be characterized as
"difficulties in working collaboratively in law." From that point,
the idea of "open source" is really only an inspiration rather than a
plan of approach. We are asking how lawyers and laymen can
collaborate on large scale to produce legal work product. We are
hoping to achieve some of the advantages of production that anarchic
approaches like free software have produced in other domains.
(One of the many advantages of "free software" over "open source" as
notation for what we do is that it's much less subject to metaphor
abuse. People come to me all the time with schemes for "open source"
this and that, which need to be evaluated on their merits without
regard to how computer software is made and distributed, or even
without regard, as here, to the principled distinction between zero
and non-zero marginal cost.)
Because legal activity is fact-dependent, and—as Jerome Frank
pointed out so long ago—facts are uniquely combined and only
partially discoverable in each individual social situation with which
legal process deals, legal products have non-zero marginal cost.
Even if they are merely bitstreams, the must be adapted somehow each
time they are used.
So we are really asking here, in my opinion, not how law can be
produced the way free software is produced, but rather how lawyers
can collaborate so as to raise productivity substantially, that is,
so as to make much more legal service available to more clients at
prices they can afford to pay, while improving the quality of the
services rendered in absolute terms.
I think this question does bear close relationship to what we've been
talking about. It's more, however, like how to collaborate to
produce major motion pictures without coercively controlling
distribution. Lawyers need to be able to discover opportunities to
collaborate with distant or previously-unknown colleagues, to
evaluate the proposed collaborators involved in the opportunity, to
jointly access and manage privileged material, to generate work
product for deployment by primary counsel, and to construct billing
systems that allocate and distribute shares of fees received. They
also need to be able to think collaboratively, using the Web as a
place to evolve rather than just communicate ideas.
As you will have seen by now, I also think this questions bears a
close relationship to what we've been doing, too. I believe that
this course is part of my effort to evolve the arrangements you're
talking about. My 1L course, which you've also taken, is designed as
the introduction to thinking like that kind of lawyer. Each of my
other courses is designed to use technologies of collaboration to
induce skills that contribute to being that kind of lawyer,
intellectually. Colleagues like Conrad Johnson, Mary Zulack, and
Jane Spinak are offering other courses and teaching within the
existing program in ways that help with other aspects of training
such lawyers. As more teachers are themselves brought to relearning
how to practice law, their teaching too will change. Students,
however, should both demand and become faster change themselves,
because you need to master the existing (new, rapidly-changing) world
in order to begin your careers. The thought-road you're on is the
crucial one. Don't be decoyed by a metaphor.
| | |
****Notes for revision**** | | | With FOSS, the GPL defines open: under specified conditions, are you compelled to share, with anyone who asks, certain of your work product - namely, source code. | |
>
> | No, Devin, the GPL is
merely one set of terms available for software that's free to copy,
modify, and share. Most free software licenses are "permissive,"
which means that they do not require modified versions to be
redistributed under the same terms as the modifier received in the
root stock she modified. This property of requiring downstream
preservation of license terms, often called "copyleft," is the
conceptual innovation of the GPL. Licenses that don't use copyleft,
like the Apache Software License, or the BSD and MIT/X11 licenses,
permit the downstream modified versions to be licensed however the
modifier wishes. This is still FOSS. So are the hybrid models in
between, like the Eclipse license, which can best be described as
"permissive as to executables, copyleft as to source code." All have
their place in the FOSS ecology. This might be a parallel to the
discussion Shawn begins here, modulo the general warning about
comparisons.
Also, neither widely-used version of the GPL requires distribution of
source code to "anyone who asks." Under GPLv3, source code must be
provided to anyone who has a copy of the executable, or binary,
version of the code. It is permissible, though not usual, to require
proof of possession of the binary. Under GPLv2, source may be
provided only to persons provided the binary, if the source is
provided "along with" the executable. Under GPLv2, executables can
be provided without source code, provided there is a written offer
for the source code included with the executable. In this instance,
only, source code must be provided to anyone who asks. Conceptually
the case is an edge condition, because distribution of source "along
with" binaries is the preferred and most common means of complying
with the license. But commercially it's very important, because
product manufacturers whose products embed GPL'd software often do
not feel inclined to put a CD of source code in the product box.
They feel it confuses their customers. So they prefer to make a
written offer, which leads to an obligation to produce source code to
all requesters. | | | Also, to use the "open-source" analogy, you need not only define "open" - but also the second part of the term, "source." What is the "source code" of lawyering? This leads to the question: what is the "executable program"?
I think these are conceptual challenges to using the "open-source" metaphor in the context of law. Unlike with software, there is not a clearly distinguishable "program" (which cannot be altered easily) and "source code" (the hidden mechanics that allow customization). Anyone that wants to use someone else's brief can alter sentences at will. The fundamental mechanics of lawyer-writing are human-readable (at least, lawyer-readable), and can be adjusted at will. |
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ShawnFettyFirstPaper 12 - 14 Nov 2011 - Main.ShawnFetty
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| | | 2) Open-sourcing has no clear answer to the rigidity imposed by the practical realities of lawyering. | |
<
< | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences. | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences. | | | First, it curbs the ambition of lawyers who would use open-sourcing to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. |
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ShawnFettyFirstPaper 11 - 12 Nov 2011 - Main.ShawnFetty
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| | | I think the heart of the HLS wiki and your concerns here are really primarily about the power of distributed, decentralized cooperation. In short, distributed lawyering. It's about setting up a structure so that people can cooperate asynchronously and without strong centralized coordination. In order for this to function, some openness is necessary: people cannot contribute to a project if they cannot read it. However, the heart of these structures is really about distribution, not openness, I think. An example that might concretize my point might be helpful. Take an arbitrary group of lawyers who want to work together; say, a hypothetical group of 100 lawyers at a nonprofit law firm called Pseudonymity Now. They might make a password protected wiki so that all 100 lawyers, and perhaps a few trusted interns, can contribute to a brief. They might make small tweaks at 2 am, or write whole paragraphs. This is harnessing the power of distributed working. However, it is not really "open" in the same way that the GPL, in FOSS World, compels the sharing of the (otherwise inaccessible) source code with anyone who asks under certain circumstances.
-- DevinMcDougall - 12 Nov 2011 | |
>
> | I don't see a reason to break into the semantics of "open-source." The term expanded well-before me, though it may have been to the dismay of the programmers who originally coined it. It's just a stand in for "free collaboration, especially over the internet." Doesn't everyone already know that? Hence, open-source ecology. I don't want to say "Open Law" because Harvard has already co-opted that term. I define what I'm talking about in the very first sentence and include examples of it in practice.
I agree about your solution. It's generally the direction I'm going, but my goal here is really to set up the problems in a strategic way before I go about solving them.
-- ShawnFetty - 12 Nov 2011 | | | \ No newline at end of file |
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ShawnFettyFirstPaper 10 - 12 Nov 2011 - Main.DevinMcDougall
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| | | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, ShawnFetty
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>
> | . A thought:
I think an issue here is: what is the definition of "open"?
With FOSS, the GPL defines open: under specified conditions, are you compelled to share, with anyone who asks, certain of your work product - namely, source code.
Also, to use the "open-source" analogy, you need not only define "open" - but also the second part of the term, "source." What is the "source code" of lawyering? This leads to the question: what is the "executable program"?
I think these are conceptual challenges to using the "open-source" metaphor in the context of law. Unlike with software, there is not a clearly distinguishable "program" (which cannot be altered easily) and "source code" (the hidden mechanics that allow customization). Anyone that wants to use someone else's brief can alter sentences at will. The fundamental mechanics of lawyer-writing are human-readable (at least, lawyer-readable), and can be adjusted at will.
I think the heart of the HLS wiki and your concerns here are really primarily about the power of distributed, decentralized cooperation. In short, distributed lawyering. It's about setting up a structure so that people can cooperate asynchronously and without strong centralized coordination. In order for this to function, some openness is necessary: people cannot contribute to a project if they cannot read it. However, the heart of these structures is really about distribution, not openness, I think. An example that might concretize my point might be helpful. Take an arbitrary group of lawyers who want to work together; say, a hypothetical group of 100 lawyers at a nonprofit law firm called Pseudonymity Now. They might make a password protected wiki so that all 100 lawyers, and perhaps a few trusted interns, can contribute to a brief. They might make small tweaks at 2 am, or write whole paragraphs. This is harnessing the power of distributed working. However, it is not really "open" in the same way that the GPL, in FOSS World, compels the sharing of the (otherwise inaccessible) source code with anyone who asks under certain circumstances.
-- DevinMcDougall - 12 Nov 2011 |
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ShawnFettyFirstPaper 9 - 11 Nov 2011 - Main.ShawnFetty
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< | NOT READY FOR EDITING | >
> | READY FOR EDITING. See end for my own note for future drafts | | | The Problem(s) with open-source law
-- By ShawnFetty - 19 Oct 2011 | |
<
< | Introduction | >
> | I) Introduction | | | | |
<
< | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | >
> | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none —or at least cheaper legal services. | | | | |
<
< | Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) Wexis, 2) treatises and practice journals, and 3) lawyering itself. In the first case, we have PreCydent, an open-source competitor to Wexis. For the second, a number of Wikipedia-law-clones have been published on the Web. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs. | >
> | Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) Wexis, 2) legal reference materials, and 3) lawyering itself. In the first case, we have PreCydent, an open-source competitor to Wexis. For the second, a number of Wikipedia-law-clones have been published on the Web. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs. | | | Despite these efforts, open-source law remains a sluggish movement. None of the Law-Wikis have been even modestly adopted, Precydent went belly up, and the Berkman Center’s Openlaw site appears to have been effectively decommissioned (given the dead links and other signs of neglect) sometime in 2002, just a few years after its inception. | |
<
< | These are setbacks, but with respect to the first two facets of open-source law, workable models have been developed. Precydent did everything we need it to do. And, while the Law-Wikis have floundered, the birth of thousands of legal blogs, coupled with efforts like Cornell’s Legal Information Institute and Justia, provides at least the start of an open conversation about the state of the law and legal practice. Money and lack-of-interest are problems, but they are problems with relatively simple solutions. | >
> | These are setbacks, but with respect to the first two facets of open-source law, workable models have been forged. Precydent was a capable product. And, while the Law-Wikis have floundered, the birth of thousands of legal blogs, coupled with a movement for free access to law, provides at least the start of an open conversation about the state of the law and legal practice. Money and lack-of-interest are problems, but they are problems with relatively simple solutions. | | | | |
<
< | On the other hand, rejuvenating open-source lawyering requires addressing the array of sociological and professional elements working against lawyers collaborating. | >
> | In contrast, nothing about Openlaw is sustainable. Rejuvenating open-source lawyering requires addressing the array of professional elements working against lawyers collaborating. | | | | |
>
> | II) Legal practice has several characteristics that are incompatible with conventional models of open-sourcing. | | | | |
>
> | 1) Open-sourcing’s most basic element, openness, directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. | | | | |
>
> | Open-sourcing depends on sharing and transparency. Otherwise, dispersed actors cannot effectively collaborate. For a lawyer and his client, however, total openness sunders the important protection afforded by attorney-client privilege. Legal aid that waives privilege denudes an already vulnerable client, and moreover discourages outside lawyers and organizations from contributing. People rationally concerned with legal strategy will not accept the risk. | | | | |
<
< | Section II | >
> | At the same time, measures that preserve privilege tend to defeat the purpose of open-sourcing. Such measures necessarily involve some degree of screening off the public: the very resource we’re trying to tap. The call for basic justice rings clear throughout the Web, but significant obstacles to participation will keep anyone from answering it. Open-source lawyering thus treads a fine line between being too-closed-to-benefit and too-open-to-survive. Tempering that balance is key. | | | | |
<
< | Subsection A | >
> | 2) Open-sourcing has no clear answer to the rigidity imposed by the practical realities of lawyering. | | | | |
<
< | Subsub 1 | >
> | As a matter of both law and professional ethics, once the lawyer-client relationship is formed, the lawyer must properly tend to the clients’ legal rights. This duty and the threat of malpractice lawsuits and professional reprimand help secure the lawyer’s responsible representation and responsiveness. Ultimately, someone has to appear in court, and that person’s reputation and license are on the line. This has two consequences. | | | | |
<
< | Subsection B | >
> | First, it curbs the ambition of lawyers who would use open-sourcing to work justice. They can never take on a large project in the hopes that the Internet will pick up the slack. If the matter is too big for them to resolve on their own and open-sourcing fails them by operating too slowly or not at all, they will be disciplined. This is an ill-borne loss, and no one will risk it. | | | | |
<
< | Subsub 1 | >
> | Second, it means important details will always be refracted through the lens of a faraway mind. If you believe (as many do) that facts make law, then you will want to see the facts yourself before making suggestions. If you want to contribute to open-source software, the machine you want to fix is there on the table in front of you. With open-source lawyering, your repairs are aimed at a schematic that is someone else's best guess as to what the machine looks like. | | | | |
>
> | 3) Unlike other implementations of open-sourcing, law proceeds on a definite timeline that is often externally imposed. | | | | |
<
< | Subsub 2 | >
> | Open-source software may develop efficiently, but it may develop inefficiently or be spontaneously dropped. Indeed, flexibility is a key advantage. In law, missed deadlines terminate substantive rights and rankle presiding judges. Either is devastating.
III) Conclusion
I am certain the above issues must be resolved for open-source lawyering to exist. Furthermore, I believe these problems require technical solutions. Whether a technology exists to resolve them is an open question.
****Notes for revision****
I want to shore up evidence I think is missing for some of my broader assertions. As discussed, I'm working on that part.
I have given myself room to expand here. I did this because I may want to incorporate another set of obstacles, namely lawyer sociology. As space was becoming tight and because I think they are less important, I have cut those issues for now. There may not be space for them here once the logic and evidence are refined.
I think the conclusion is insipid, but it says what I think. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. | | | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, ShawnFetty
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<
< | . This is a really cool topic. One potential application: replacing Westlaw/Nexis. Their hyperlinking, tagging and indexing is very useful, but it is nothing that Wikipedia's technology and norms could not also do.
One thing you might also consider is the choice of terms "open source" versus "free software"' whichever you choose, you may want to develop an account of why. Richard Stallman, among others, prefers to use the phrase "free software" because it reminds the user that the central issue is ethical - freedom. However, here, the translation is inexact because law is not software (except in a metaphorical sense). If you google "free software v. open source" or something similar you will find copious debate on this subject if you are interested.
-- DevinMcDougall - 19 Oct 2011
I agree. I should spend at least some time clarifying my choice of terms. Because space here is limited, I'm probably not going to get into it, but it's something I'm going to keep in mind as I move forward with my bigger project/my next essay.
-- ShawnFetty - 19 Oct 2011 | | | \ No newline at end of file |
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ShawnFettyFirstPaper 8 - 03 Nov 2011 - Main.ShawnFetty
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| | | These are setbacks, but with respect to the first two facets of open-source law, workable models have been developed. Precydent did everything we need it to do. And, while the Law-Wikis have floundered, the birth of thousands of legal blogs, coupled with efforts like Cornell’s Legal Information Institute and Justia, provides at least the start of an open conversation about the state of the law and legal practice. Money and lack-of-interest are problems, but they are problems with relatively simple solutions. | |
<
< | Rejuvenating open-source lawyering requires addressing the array of sociological and professional elements working against lawyers collaborating. | >
> | On the other hand, rejuvenating open-source lawyering requires addressing the array of sociological and professional elements working against lawyers collaborating. | | | |
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ShawnFettyFirstPaper 7 - 02 Nov 2011 - Main.ShawnFetty
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<
< | Just collecting links while I continue to edit off-wiki | >
> | NOT READY FOR EDITING | | | The Problem(s) with open-source law | | | Introduction | |
<
< | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | >
> | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | | | | |
>
> | Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) Wexis, 2) treatises and practice journals, and 3) lawyering itself. In the first case, we have PreCydent, an open-source competitor to Wexis. For the second, a number of Wikipedia-law-clones have been published on the Web. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs. | | | | |
<
< | Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) treatises and practice journals, 2) Wexis, and 3) lawyering itself. In the first case, a number of Wikipedia-law-clones have been published on the Web. For the second, we have PreCydent, an open-source competitor to Wexis. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs. | >
> | Despite these efforts, open-source law remains a sluggish movement. None of the Law-Wikis have been even modestly adopted, Precydent went belly up, and the Berkman Center’s Openlaw site appears to have been effectively decommissioned (given the dead links and other signs of neglect) sometime in 2002, just a few years after its inception. | | | | |
<
< | Despite these efforts, a sustainable model for open-source law remains undeveloped. None of the Law-Wikis have been even modestly adopted, Precydent went belly up, and the Berkman Center’s Openlaw site appears to have been effectively decommissioned (given the dead links and other signs of neglect) some time in 2002, just a few years after its inception. Here, I sketch what happened with open-source law. | >
> | These are setbacks, but with respect to the first two facets of open-source law, workable models have been developed. Precydent did everything we need it to do. And, while the Law-Wikis have floundered, the birth of thousands of legal blogs, coupled with efforts like Cornell’s Legal Information Institute and Justia, provides at least the start of an open conversation about the state of the law and legal practice. Money and lack-of-interest are problems, but they are problems with relatively simple solutions. | | | | |
<
< | Moreover, while sites like Cornell's Legal Information Institute Justia.com may eventually become credible legal references, they fall short when it comes to promoting actual advocacy. | >
> | Rejuvenating open-source lawyering requires addressing the array of sociological and professional elements working against lawyers collaborating. | | | | |
<
< | Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must address the array of sociological and professional elements working against lawyers collaborating. | | |
Section II |
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ShawnFettyFirstPaper 6 - 27 Oct 2011 - Main.ShawnFetty
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| META TOPICPARENT | name="FirstPaper" |
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| | | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | |
<
< | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is rife with dead links and other signs of neglect. | | | | |
<
< | In contrast, Wikipedia and open-source software are, by this point, more-or-less self-perpetuating. Where a hole exists in either, someone somewhere will fill it, probably sooner than later. Free collaboration has clearly worked well in these contexts. Here, I sketch what happened with open-source law. Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must address the array of sociological and professional elements working against lawyers collaborating. | >
> | Striving for those goals, proponents of open-source law have been chasing the tails of three very different dragons: 1) treatises and practice journals, 2) Wexis, and 3) lawyering itself. In the first case, a number of Wikipedia-law-clones have been published on the Web. For the second, we have PreCydent, an open-source competitor to Wexis. And finally, we have Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs.
Despite these efforts, a sustainable model for open-source law remains undeveloped. None of the Law-Wikis have been even modestly adopted, Precydent went belly up, and the Berkman Center’s Openlaw site appears to have been effectively decommissioned (given the dead links and other signs of neglect) some time in 2002, just a few years after its inception. Here, I sketch what happened with open-source law.
Moreover, while sites like Cornell's Legal Information Institute Justia.com may eventually become credible legal references, they fall short when it comes to promoting actual advocacy.
Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must address the array of sociological and professional elements working against lawyers collaborating. | | |
Section II |
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ShawnFettyFirstPaper 5 - 25 Oct 2011 - Main.ShawnFetty
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< | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | >
> | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | | | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is rife with dead links and other signs of neglect. |
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ShawnFettyFirstPaper 4 - 21 Oct 2011 - Main.ShawnFetty
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| | | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | |
<
< | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is riddled with dead links and other signs of neglect. | >
> | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is rife with dead links and other signs of neglect. | | | In contrast, Wikipedia and open-source software are, by this point, more-or-less self-perpetuating. Where a hole exists in either, someone somewhere will fill it, probably sooner than later. Free collaboration has clearly worked well in these contexts. Here, I sketch what happened with open-source law. Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must address the array of sociological and professional elements working against lawyers collaborating. |
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ShawnFettyFirstPaper 3 - 19 Oct 2011 - Main.ShawnFetty
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| | | Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services. | |
<
< | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is riddled with dead links and other signs of neglect. | >
> | To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is riddled with dead links and other signs of neglect. | | | | |
<
< | In contrast, Wikipedia and open-source software are, by this point, more-or-less self-perpetuating. Where a hole exists in either, someone somewhere will fill it, probably sooner than later. Free collaboration has clearly worked well in these contexts. Here, I sketch what happened with open-source law. Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must respond to the array of sociological and professional elements working against lawyers collaborating. | >
> | In contrast, Wikipedia and open-source software are, by this point, more-or-less self-perpetuating. Where a hole exists in either, someone somewhere will fill it, probably sooner than later. Free collaboration has clearly worked well in these contexts. Here, I sketch what happened with open-source law. Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must address the array of sociological and professional elements working against lawyers collaborating. | | |
Section II | | | One thing you might also consider is the choice of terms "open source" versus "free software"' whichever you choose, you may want to develop an account of why. Richard Stallman, among others, prefers to use the phrase "free software" because it reminds the user that the central issue is ethical - freedom. However, here, the translation is inexact because law is not software (except in a metaphorical sense). If you google "free software v. open source" or something similar you will find copious debate on this subject if you are interested.
-- DevinMcDougall - 19 Oct 2011
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> | I agree. I should spend at least some time clarifying my choice of terms. Because space here is limited, I'm probably not going to get into it, but it's something I'm going to keep in mind as I move forward with my bigger project/my next essay.
-- ShawnFetty - 19 Oct 2011 |
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ShawnFettyFirstPaper 2 - 19 Oct 2011 - Main.DevinMcDougall
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| | | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, ShawnFetty
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | |
>
> | . This is a really cool topic. One potential application: replacing Westlaw/Nexis. Their hyperlinking, tagging and indexing is very useful, but it is nothing that Wikipedia's technology and norms could not also do.
One thing you might also consider is the choice of terms "open source" versus "free software"' whichever you choose, you may want to develop an account of why. Richard Stallman, among others, prefers to use the phrase "free software" because it reminds the user that the central issue is ethical - freedom. However, here, the translation is inexact because law is not software (except in a metaphorical sense). If you google "free software v. open source" or something similar you will find copious debate on this subject if you are interested.
-- DevinMcDougall - 19 Oct 2011 | | | \ No newline at end of file |
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ShawnFettyFirstPaper 1 - 19 Oct 2011 - Main.ShawnFetty
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Just collecting links while I continue to edit off-wiki
The Problem(s) with open-source law
-- By ShawnFetty - 19 Oct 2011
Introduction
Open-source law envisions the coordinated effort of dispersed, freely collaborating lawyers. The idea builds on the same premise (simplified here) as open-source software: the product of free and easy sharing is superior to proprietary products. Open-source law promises the pursuit of justice where there is none—or at least cheaper legal services.
To-date, implementations of open-source law have tackled 1) legal reference materials and 2) collective brief writing. Nevertheless, a sustainable model for open-source law remains undeveloped. In the first case, a number of Wikipedia-law-clones have been published on the Web, but none have been even modestly adopted. Moreover, while Cornell's Legal Information Institute is a credible legal reference, it falls short when it comes to promoting actual advocacy. As for the second approach, Harvard’s experiment in “[harnessing] the distributed resources of the Internet” to draft briefs appears to have been effectively decommissioned some time in 2002, just a few years after its inception. The Berkman Center’s Openlaw site is riddled with dead links and other signs of neglect.
In contrast, Wikipedia and open-source software are, by this point, more-or-less self-perpetuating. Where a hole exists in either, someone somewhere will fill it, probably sooner than later. Free collaboration has clearly worked well in these contexts. Here, I sketch what happened with open-source law. Law is not inherently incompatible with the open-source model. Moving forward, any successful open-source law methodology must respond to the array of sociological and professional elements working against lawyers collaborating.
Section II
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, ShawnFetty
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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