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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.

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.

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.

On the other hand, rejuvenating open-source lawyering requires addressing the array of sociological and professional elements working against lawyers collaborating.

Section II

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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:

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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