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The Courts Government News

The Open Source model in a legal setting 30

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 "
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The Open Source model in a legal setting

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  • Posted by AnnoyingMouseCoward:

    Locality. Yep, that's it in a nut shell. One of the bigest legal headaches on the internet today is jurisdiction.

    Stop and think about it. We can't even get any kind of agreement from different nation states on the subject of sexually explicet material on the internet, and where supposed to believe that legal professionals from around the world are going to have any more luck on the subject of copyright?

    No way. It's a nice idea on paper, but my inate sense og cynicism makes me doubt that this will ever get of the ground.

    Just my $0.02 worth.
  • He's not calling it "Open Source Law." He's calling it "Open Law." Whether it can only be applied to select cases or not seems to be irrelevant to me. I wouldn't expect it to be applied to my case if I was suing or being sued by someone. However, if it was a constitutional issue at stake, I would think that the more input you can get from lawyers and others who are interested in the case, the more arguments you'll have to choose from. There may be angles that the lawyers did not look at. The idea does have some merit and I think it's worth a try in certain cases.

  • by Derek ( 1525 ) on Monday April 26, 1999 @04:18PM (#1914821) Journal
    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.

  • The legal system is like an operating system. Court procedures define the scheduler and resource allocation. Case-law is available to you as subroutines. A good legal argument is a good hack. Erm, I think. I did talk this through with a law student a while back.
  • also did that with the Wang suit
  • 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 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 [] 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....

  • I think this is really quite exciting because it shows that the open source movement is becoming more than just about software.. It's the whole idea of freeing up information.
  • There's another problem here. If the wrong program goes out -- a buggy, or otherwise failed attempt -- one can issue a patch after the fact. So, suppose that a "closed" competitor to an open project notices a bug in the open project, but doesn't say so. The open programmers then can issue a patch after the fact; this is one of the big bonuses for users of open software.

    Not so with legal arguments. Generally, the courts allow only one chance to make the novel arguments. (New evidence, or other reasons for appeal, will allow extra chances; but that's not the baseline situation.) So, if one's opposition knows what one is going to say, and notices a problem, s/he has lots of time to tear that problem to bits; but one does not really have adequate opportunity to respond. Hence, there's an advantage to surprise in law that doesn't show up in programming.

  • A very clever idea from a very clever man. But I'm afraid my view of Lessig is that he's too clever by half, which is readily apparent after you start reading his proposed "solution" to the problems posed by the CDA.

    He keeps trying to start up bandwagons that will name their tune for him, but they keep sputtering and stalling. Remember the "New Chicago School" notions that were supposed to supplant the "old school" law-and-economics approach of Posner and others at the University of Chicago? Well, Posner's crowd keeps flattening people everywhere with its mechanistic view of how the world works (which generally somehow, I really don't know how, always seem to end up supporting those who already have the greater economic power in any given situation -- but I digress).

    And "New Chicago"? Wellll, New Chicago looks kind of old school after all, if you look at the table of contents of some of Lessig's recent confabs, such as this [].

    I'm sure Lessig is far smarter than I'll ever be. But he strikes me as far more a politician than an innovator or synthesizer in the field of law, and this "open law" thing looks like just another attempt to grab the limelight.

  • Fuhgetabbowdit. All it will take is one failure of this model - a legal team that tries the OSS model to win a case and loses. Then, it'll be opened up to lawsuits from the client, who will claim that the reason the claim was lost was because the legal team "leaked" crucial strategic information to opposing counsel.

    It's a shame, in a sense: I'm not at all sure that our current "adversarial" method of assigning guilt/responsibility in a court of law is at all the way to go, but once you're there, you're committed. The system can make adversaries out of anyone - even a lawyer and his client.

    Enh. Oh well. I'm operating on 3 hours of sleep, so this probably wasn't as well worded as I'd like it to be. C'est la vie.
  • I submitted this story about a week ago when I learned of it through my subscription to a mailing list for Copyright's Commons.

    But now that it's been written up in Wired, it's suddenly worth posting?

  • If those Brazilians use Eldritch Press, or any other online book place, they might. Aren't many types of copyright reciprocated throughout a lot of countries? The internet isn't limited to any one country. Legal issues that involve it should be of interest to all of the net's users, as they will be affected by those issues. (I realize that this issue isn't strictly net related.)

    In certain legal settings, as the guy from Harvard stated, an open method can really help. In most others, you are correct, it'll hurt. When it comes right down to it, it's up to the defending and prosecuting attorney's to determine what they will and won't use; you don't need to convince a group, as only one or a few people have the last word. I think this method would be best used with constitutional level issues, as winning doesn't matter with them, being right and winning matters. The lawyers in a constitutional case shouldn't be out to win the case no matter what, they should be out to defend freedom and the like.

    As to the reward. If it's your argument that wins the case, but you have a horrific LSAT score, don't you think the law school would give you a better chance than if you just had a horrible LSAT? This can be expanded to cover other things as well. As with OSS, the prestige/experience garnered from OL can be used to get better jobs. If it's a constitutional issue that's at stake, at least some lawyers would be willing to go pro bono to defend their rights.

    pro bono v. sony bono. Who'll win?

  • Apogee software received the threat of a lawsuit based on the fact that they were believed to be infringing a patent. I can't recall exactly what the patent was for. Something like having a simulated character that also uttered language phrases. Anyway, they challenged the patent by claiming there was prior art. In order to bolster their case, they asked the help of the Internet in providing examples that predated the patent. The lawyers for Apogee were blown away by the volume and quality of responses. They ended up winning their case.

    So to all those naysayers that say it can't be done, all I can do is point out that it already has.
  • I've written a little code (not much, not very good, which is why I got a different job) and I've written a lot of legal argument, and I guess I just disagree with the statement "brief-writing is NOT about finding bugs." True, not bugs in the objective sense that code manifests them, but not all of us get to live in the world of code. Legal code, or legal argument, has a different kind of bug - arguments that don't resonate. And while this effort to open legal argument up has just begun, I've already seen in posting and private missives just how blind an author (I) can be.

    The question for a brief is whether it compels; it is buggy if it doesn't; and others certainly help a lawyer see where it doesn't.

  • With all due regard, this sort of thing (modularizing the law/version control) has been happening for hundreds of years. The statute books are, in fact, a codification of the positive law passed by the Congress, not a mere collection of the bills themselves.

    Studying the law, you will discover that law falls fairly neatly into a variety of well-defined causes of action (modules), each with a plurality of elements, defenses and procedural rules unique to each cause.

    But it is a mistake to think of the law as simply one moby API. It isn't so. The law must be far more flexible than code, because it must ALWAYS work, even after it crashes. (Not deciding an issue is to decide it). The interactions among people in modern society are highly complex, and defy bright-line rulemaking.

    Moreover (and this takes a few years of practice before you really understand and believe it), the language of the law defies formal codification. Words cannot convey unique meanings that uniformly dictate what a judge can or cannot do, and the more words you write, the less clear (not the more clear) the law becomes.

    It is Murphy's law gone awry -- because the processors operating on this system are dedicated to finding ways to bend and break the rules to their advantage -- every weakness in the process and methodology is exploited.

    Top that with the fact that positive law derives from politics, and you begin to get the idea.
  • There are some serious differences here as well. Yes, it is nice to get acknowledged in a brief involving some seminal issue, but be aware that in the practice of law, there is always risk of a claim of malpractice. The downside risk of contributing, particularly when you cannot control how information is used, may outweigh the benefits to lawyers of participation, and they may prefer to do this the old-fashioned way, by fashioning their own pro-bono amicus curiae brief instead.

    And, yes, there will always be a Linus (in this case a Lessig) to sort things out -- but that's the entire point. A great lawyer at the top can almost always do better simply by doing his own research, and drafting his own brief. The benefits of code reading simply don't translate by analogy in this case. If the morass of contributions is large compared with the corpus of legal writings to be researched, the downside of distracting Professor Lessig may well outweigh the virtues of tweaking his mind with the occasional jewel.

    Brief-writing is NOT about finding bugs, nor is it about incorporating each and every conceivable argument. It is about fashioning in a ridiculously small amount of space an argument put so plainly it cannot be discounted.

    I am not sure the model works -- but LL will tell us at the end of the day how it went, I am sure.
  • >why would they?

    Because third parties may care about the result. This happens all the time, in the form of amicus briefs and appearances and more rarely, by intervention in the case. Particularly when the issue is one of important social policy raising highly constitutional issues, say the enforceability of the CDA, many lawyers might be "moved" to cooperate.

    > policy is being decided less by legislative forums than by the judicial system in the U.S.

    I firmly dissent from AC's proposition that judges making law is a new thing, or an increasing thing.
    Indeed, exactly the opposite seems to be the case in recent times.

    Judge-made policy filling the interstices of legislation (and in the US, constitutional language) has been a part of Anglo-American law for a century shy of a millenium. Without a doubt, the tendency in present times has been for judges to shy AWAY FROM non-textualist constructions of the law, not to embrace them. Following Antonin Scalia's writings, meaningful common law adjudiction, as we lawyers euphemistically call the practice of judges filling in the blanks, has actually become quite rare in recent years.

    It is important to note the very case that spawned this thread is about the constitutionality of particular legislation, not judge-made policies. In this case, I'd bet against the Lessig clan's chances of overturning the Copyright term extensions, but I'd be pleased (as a policy matter) if they would astonish me.
  • >>[contributions to cases from all sorts of parties] happens all the time, in the form of amicus briefs and appearances...

    > which might then be added to the corpus of legal commentary, a searchable database? Helpful, but you need to make the case that this is dependent on Open-ness.

    All briefs are public record. All Supreme Court briefs are available on microfiche in most law libraries; most are available through proprietary data services (to which nearly every lawyer subscribes); and many in recent cases are available on-line.

    Nearly every document filed in nearly every case is available for inspection at the appropriate clerk's office.

    Open court records is not a new idea either. It was the law long before rms ever sat before a computer.

    > werdna, you've caught me for the moment. I can't defend that at this time. All I can do is meekly retreat and say that OpenPolicy forums would be more pertinent to public usage.

    Fair enough. But don't forget that the Congress of the United States and the Constitutional Convention were both Open Policy forums. All the courts are doing is try and figure out what was the result of those deliberations. Imagine how much harder that might be if deliberations are made in an even more diffuse and less well-recorded manner.

  • 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.
  • by werdna ( 39029 ) on Monday April 26, 1999 @04:58PM (#1914839) Journal
    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.
  • You suggest that open source models work best where there is a group of "technically talented users" -- and it seems to me the legal community could put its shared technical skill to work jointly on a case that attracted its collective attention.

    In challenging the copyright term extension, the openlaw strategy works against the collective action problem of this type of suit. While it would be difficult for any of the individuals harmed by the Act to fight against the mega media interests, we open a forum where they can combine smaller-scale contributions. Here, readers of the Eldritch Press and singers in the church choir can fight against the Disneys.

    At times, the lawyers on the brief have to take authorial/editorial control, but we imagine they will have a richer stew from which to draw. We'll see where it takes us!

    --Wendy []
  • What Apogee asked for is not the same as what this guy is proposing. Here, the actual court documents are up for review by anyone before they are sent to the court. This is different from a company looking for specific facts.

    What this professor is proposing goes further. the only problem is that, like communism, it might be too far ahead of its time or too utopian.
  • I was AC. Sorry my name got lost.

    >I firmly dissent from AC's proposition that judges making law is a new thing, or an increasing thing.

    We're measuring differently: as a lawyer, you might be counting by case, and be right. I'm measuring by policy effect (read: money); the tobacco settlement seems to have tipped the scales this past year.

    >[contributions to cases from all sorts of parties] happens all the time, in the form of amicus briefs and appearances...

    which might then be added to the corpus of legal commentary, a searchable database? Helpful, but you need to make the case that this is dependent on Open-ness.

    >It is important to note the very case that spawned this thread is about the constitutionality of particular legislation

    So given my last post, I'm expected to defend that the issue of copyright extensions can better be solved in a Policy Forum than a Federal court.

    werdna, you've caught me for the moment. I can't defend that at this time. All I can do is meekly retreat and say that OpenPolicy forums would be more pertinent to public usage. They would be a ncessary base for OpenLaw to develop from.

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