1/29 Actively being revised. More to come as I continue to recast the problem.

The Problem(s) with open-source law

-- By ShawnFetty - 19 Oct 2011

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.

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.

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 thwart Web-based collaboration.

1) The openness promoted by the Web directly undercuts lawyers’ sacrosanct duty to protect their clients’ confidences.

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 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) 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.

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.

****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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. 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