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The Open Source model in a legal setting
Dmitri Evseev writes "Wired has an article called
Open
Source in Open Court, describing an effort by Lawrence
Lessig, former Special Master in the DOJ suit against
Microsoft, to apply an Open Source-type model to crafting
legal arguments. The idea is to open a side's legal
strategy for public input and participation in order to
present a better argument in court. More information on
this project is available on here "
Here's why...
1) Localization. It is hard to fully "harness the power of the internet" when the project is specific to one country, state, or city. I'm not going to get involved in Italian legal issues, nor do I think many Brazilian internet users are interested in AnyState USA's legal issues.
2) Where's the reward? Even it is just bragging rights, development of open source software carries rewards that I can't find in the legal model.
3) Too many different opinions. Software opinions can usually be resolved by deciding what is technically correct, or what gets the job done. Legal issues seem to be much more difficult to get a group to come to agreement.
It's probably worth a try, but it really don't see this one catching on or lasting very long.
-Derek
Lawrence Lessig is the Berkman Professor for Entrepreneurial Legal Studies at Harvard Law School. I first found out about him while exploring the Berkman Center for Internet and Society web site after seeing the posting about the H20 project. Since then, I have been reading everything that Lawrence Lessig has written.
You can check out some of the stuff he has written by 1st going to Lessig web site. I especially recommend the various articles that he has written for the Industry Standard. I truly believe that you will enjoy reading his well thought out essays.
IMHO, Lessig is the type of advocate that the OSS movement has underutilized.
Whatever. I'm in law school and this guy's type of insight just does not get discussed.
I've contemplated use of internet in law practice since I came to law school. It is primarily what has interested me in OSS and linux (debian dude, 4 life)...
I have often advocated to my peers that an open law model would make law more accessible to the the masses. There is a New York lawyer how has started probono.net where he will post cases on the net and takers can sign up. The takers will be put in touch with each other and irc so that document and research collaberation can take place. This is more of a joint venture model or open partnership model. In the majority of cases, sharing research on the internet is prohibited unless the lawyers are part of the same firm. We do want our lawyer representing us not the opposition.
This peer review of analysis works for Harvard types like him who are chosen to work on big nationally recognized cases. For the little guy, this would not have an impact.
My idea of the open partnership, where individual lawyers choose cases on an ad hoc cases and collaberate on a per case basis would put class actions on behalf of poor clients (i.e., in an environmental waste case affecting poor school children), or in the case of the race discrimination that affects a small town mine worker. In these instances if attorneys had the opportunity to collaborate over distances, then those attorneys who would choose to work on a particular type of case could find enough case work to stay employed and fed. Not all lawyers are rich and work for M$.
I don't like it when highly prestigous people advocate a buzzword (open law) when they are only in a position to affect the few. See probono.net for what looks like a real practical solution to getting the huge number of unrepresented people who have real claims into court and their grievances heard.
The key is to open up the business model not the law strategy. You think a criminal defense attorney or a prosecutor is going to post their strategy on the internet so that the opposition will know what to expect? If my attorney did that I'd sue him/her for malpractice and violation of attorney-client privilege. And you know what? I'd win for sure.
This academic means publicly review policy and the constitutionality of an issue. That is theory stuff, most pertinent to peer review. But trial strategy is not.
We need the cases to get to the lawyers not the lawyers to pry into cases....
Wendy's point is, of course, well-taken. Where an issue can mobilize many volunteer legal minds (as it may in some cases), the open source model of applying multiple minds to a research task, for example, may be helpful, just as applying multiple minds to a code reading may be helpful.
But here's where lawyers need to familiarize themselves with the writings of Fred Brooks. Just because we can apply more lawyer-months to the task, doesn't mean that we will be able to gather up the various research projects to form a stronger, more cohesive whole at the end of the day.
Here, the proof is in the pudding. Assuming that Disney opted to apply infinite resources to the matter to prepare the answer brief -- do you really think that they would do so by hiring hundreds of lawyers, or perhaps a team of, say, at most a dozen of the best?
In the law, the issue is to find the needles in the haystack, the pearls of arguments that, when strung together form a cohesive and apparently irrefutable whole. Where we have zillions of lawyers each presenting their personal versions of a pearl, someone must now sort through these works to find the result. (But of course, that's just the same as the initial legal research in the first place).
The "team" does not benefit merely by throwing LOTS of resources at the problem -- it will benefit only by throwing just the right amount of resources at the right parts of the problem, with the results coming back in such a manner as to best facilitate the final works. Ironically, in many cases, Less(ig by himself) may be more.
I think its a facinating inquiry. It also raises some fabulous ethical issues. But that is a matter for a different forum. In the meanwhile, check out "The Mythical Man-Month." It has much to offer us in this analysis.
Open source models do not seem to lend themselves well for narrowly tailored end-user applications, particularly for applications directed to audiences that do not comprise a large proportion of technically talented users. The virtues of many code-readings do not accrue where the readers cannot read code.
Law is like that. There will be a number of issues that will truly get up the hackles of a large percentage of legally trained minds -- the minds that are capable and trained to analyze and contribute effectively to a legal argument. But most real-life legal issues will not excite an audience of trained legal minds, and then the "open source" benefits are lost.
And I am not certain that the benefit to the other side of being able to quote the "not so good law" that was found in the open discussion, as well as the frank analyses these things tend to create.
Sure, there is always a time and a place for brainstorming (my wife often helps me to find the intellectual center of an argument), but there really isn't much of a place for that in the practice of law once the initial analysis has been done.
Moreover, unlike programming, details must be callously discarded at EVERY opportunity once the nut of the case has been cracked. Briefs are limited to a very small page limit (on the order of twenty double-spaced pages for trial briefs), and courts punish those who go over.
Accordingly, there is a very high priority on making the argument tight, short and to the point. Many things that are salutary arguments must be glossed over or ignored in favor of writing a winning brief.
Open source solves these problems by reducing packages to modular pieces that can be independently written. This is more like writing a program to run in 48K, knowning that to make the cut, it will need to be three nested interpreters bound together with a small, but ugly piece of spaghetti code. While this is possible when one person writes it (and can even be maintainable if carefully done), when written by zillions, it is a recipe for confusion.
But a legal brief dare not be confused, not even for a paragraph.
So, i see this as a useful way to break out the task of legally researching a matter. Instead of hiring associates to spend their lives in a library, we can distribute the legal research questions and get lots of tiny memoranda on subtle minutia.
But I don't see much good at the end of the day, when the wheat must be agressively severed from the chaff, to having more than a few cooks working the broth.
While the legal research can be effectively divided up among dozens in a legal bazaar, the brief-writing may really belong in a cathedral.