READY FOR EDITING. See end for my own note for future drafts

The Problem(s) with open-source law

-- By ShawnFetty - 19 Oct 2011

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.

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 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.

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.

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.

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.

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.

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.

****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. 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

. 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