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| META TOPICPARENT | name="FirstPaper" |
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> | Actively being revised. More to come as I continue to recast the problem. |
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| | I) Introduction |
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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.
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. |
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> | 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. |
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< | 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. |
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> | 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. |
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< | 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. |
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> | 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. |
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< | In contrast, nothing about Openlaw is sustainable. Rejuvenating open-source lawyering requires addressing the array of professional elements working against lawyers collaborating. |
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> | Notwithstanding the possibilities, however, attempts to integrate the Web into legal practice to-date have been mostly unsuccessful. Why? |
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< | II) Legal practice has several characteristics that are incompatible with conventional models of open-sourcing. |
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> | II) 1) Legal practice has several characteristics that thwart Web-based collaboration. |
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< | 1) Open-sourcing’s most basic element, openness, directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. |
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> | 1) The openness promoted by the Web directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences. |
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< | 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. |
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> | 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. |
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< | 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. |
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> | 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. |
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< | 2) Open-sourcing has no clear answer to the rigidity imposed by the practical realities of lawyering. |
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> | 2) The Web has no clear answer to the rigidity imposed by the practical realities of lawyering. |
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< | 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. |
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> | 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. |
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< | 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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> | 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. |
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< | 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. |
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> | 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. |