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 "

Comments

Raises as many legal issues as may be solved

[werdna]

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.