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| | The Problem(s) with open-source law
-- By ShawnFetty - 19 Oct 2011 |
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< | Introduction |
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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. |
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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. |
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< | 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. |
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> | 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. |
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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. |
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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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< | 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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> | 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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> | II) Legal practice has several characteristics that are incompatible with conventional models of open-sourcing. |
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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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> | 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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< | Section II |
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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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< | Subsection A |
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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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< | Subsub 1 |
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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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< | Subsection B |
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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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< | Subsub 1 |
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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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> | 3) Unlike other implementations of open-sourcing, law proceeds on a definite timeline that is often externally imposed. |
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< | Subsub 2 |
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> | 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. |
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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. |
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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 |
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