So, Gentle Reader, you may have recognized the previous statement as the beginning of Martin Luther’s 95 Theses. I don’t purport the following to be anywhere even CLOSE to being as important. This is as much a list for myself as it is for distribution and to encourage conversation and debate. As many do at the turn of a calendar year, I’ve been reflecting on the past and looking forward to the future. I’ve said some of this before both here and on twitter. Some of the newer statements are not worthy of an entire blog post (or their meaning could be lost if overly explained) but too lengthy for a tweet. So this post is a way of capturing everything in a single place to organize and preserve these thoughts.
As I have three spheres of professional interest – libraries and information science, legal education, and the legal practice world – I’ve divided up my theses into those areas. That being done, I do believe that now, well into the second decade of the 21st century, this is a false trichotomy. Feel free to skip ahead to the section that is Relevant to Your Interests, but these areas are all parts of an inter-connected ecosystem and we all need to pay attention to the changes and needs of the others in order to best preserve ourselves.
Although these are the things I believe, they are all up for debate and refinement. I actually hope they are used to create some discussion. Please feel free to tell me I’m full of it (or add your own theses) in the comments, twitter or your own blog. (Although if you want to be sure I see them, please link your post in the comments since I don’t’ look at my blog stats.) Some subjects can be talked to death, but we haven’t yet scratched the surface of actual debate on many of these topics. I’ve been very disappointed in the “Anti-AltLaw” factions that rely upon ridiculous Straw Men, snark and knee jerk reactions instead of solid, fact based rebuttals.
One final editorial note…in order to preserve clarity, I’ve tried to keep the “theses” as short as possible. There are italicized commentary to flesh them out when I thought necessary.
Libraries and Information Science
- Law is data.
- Data is only truly usable if it is open, which means it is free of technological and copyright encumbrances to use.
- Access to information is a fundamental human right.
Since there is often confusion over the terms “data” and “information”, here is my definition. Data is raw material. Information is data in an organized and findable format. The Statutes at Large is data. The United States Code is information. The hodgepodge of court cases put on state websites is data. (Mostly unusable data at that…) Cases with appropriate metadata applied and at *bare minimum* are full text searchable (although indexed would be even better) is information. A law review article published in PDF on SSRN is data. A collection of articles in a repository that is searchable is information.
- Access to legal information should be considered a constitutional right.
Law governs everything we do in the United States. The fact that there exists technological and monetary barriers to accessing the law – or even in some jurisdictions how to property cite it on the chance that it is able to be found – has created an impossible barrier for the majority of its citizens to be active participants in daily activities, never mind the “justice” system.
- That the various governments entities of the United States do not publish the law they create in a informational format, let alone a data one, is a huge failure to its citizenry.
- The prevalence of the West ecosystem of citation, pagination and organization of information should be considered a monopoly.
- An open taxonomy of law should be created, ideally by government.
- A librarians primary duty is to create and preserve access to information and data.
- Librarians have let “perfect be the enemy of the good” and have ignored the Open Law movement to ultimately their own detriment, but have also failed their users.
- All law libraries, especially those paid for even in part by public monies, should at bare minimum be collecting and preserving digital legal information of their jurisdictions.
- Institutions should only be forced to pay once for information.
If something has been paid for via government monies, institutional salaries, etc. the institutions should not be pay for it again. This is as much a failure of the content creators, especially in the academic context, as the content purchasers.
- Information vendors are, for the most part, for-profit eOnentities and librarians should not be shocked when they act in ways that increase their profit margin at the detriment to libraries.
The ongoing debates about whether or not vendors are “our friends” or “evil” is a red herring. They’re neither. They are businesses who have fiduciary duties to their stock holders to make as much money as possible. Nothing more, nothing less.
- Information consumers should have the right to purchase digital information and retain it in perpetuity.
- Vendor pricing schemes should be transparent.
- Librarians should be able to trust the vendor products are created because they are filling an information need, not just to confuse librarian purchasers or increase profits.
While vendors are for-profit entities and their is nothing wrong with making money or even trying to cut libraries out of information delivery, there are certain levels of fair business practices that should be observed. These include making sure that products are truly updated and editorial quality is what it is purported to be.
- Libraries are complicit in the unequal power balance between information vendors and libraries through continuing to agree to inadequate or foolish purchases to maintain the status quo.
One glaring example from the law library world is the continued “lease” of WestPac public access terminals and information. I have heard purchase rates from $24,000 a year an up to access legal information that is freely available on Google Scholar. For shame.
- The primary ethical and professional duty of a law school is to the legal system at large. It fulfills this obligation by creating prepared and effective attorneys that will participate in this system.
- The legal education system is broken and efforts by faculty and school administrations to preserve the status quo is unethical.
- Any activities that continue to place emphasis on the US News and World Report rankings at the expense of actual student benefit are a failure of a school’s duty to its students and community.
- A law school that is graduating more students than its traditional hiring community needs should deeply rethink its enrollment numbers.
I do feel very strongly, though, that individuals that took on a six figure debt without fully researching the realities of the job market or legal practice must accept their part of the blame in the Legal Education Crisis.
- The majority of the scholarship and act ivies of a law school should directly benefit the local community – both the public and practice communities.
The model I often cite are the agricultural extension services run by land grant universities. These academic units develop new strains of seeds, perform research on methods, and provide training for both farmers and the public on many topics. Why can’t law schools create open source practice software, write articles that explain the law to a layman and provide CLEs or pro-se training sessions?
- Education, especially legal education, is about more than filling an empty vessel up with knowledge. It’s about knowledge, changing the self and learning skills, the most important of which critical thinking skills.
- The current pedagogical system of Langdellian caselaw method and one exam for assessment is an ineffective learning mechanism and provides little evidence of actual comprehension.
Learning black letter law, understanding and deciphering the language used in court cases and then apply to real world circumstances are three separate skills, yet they are all intertwined in the legal academe.
- The curriculum of law schools should incorporate more practice skills.
Duh. Sorry, I know that’s not a very professional commentary, but I cannot even believe that in some circles this is a controversial statement.
- Practice skills in the curriculum should reflect many career paths.
A recent statistic that I heard was that 70-80% of lawyers are solo or small firm attorneys. Therefore, law schools should prepare their students to be the small business owners that they are. They should also be taught “soft skills” such as communication skills that will assist them in dealing with clients.
- Adjunct faculty from the practice world can and should be used.
Adjunct faculty from the practice world can and should also be paid a fare wage for their activities.
- Law schools should support and train the whole student in their professional development including ethics and preparing for the emotional toll of practice.
Depression and substance abuse amongst lawyers is disproportionately high compared to the rest of the population. Courses and workshops on topics such as stress management should be encouraged. SBA and other student group activities that are blatantly excuses to abuse alcohol should be discouraged.
- Not only should new skills be incorporated into the curriculum, but unnecessary skills that have been held onto should be eliminated.
Fuck the bluebook. Seriously. We reallu spend hours upon hours making sure that students master a proprietary citation system that most will never use in their practice due to local rules and that can be generated by software? Ridiculous.
- Clinical and LRW faculty and courses should be treated as equals to doctrinal faculty and courses.
LRW needs to be incorporated throughout the curriculum, not just in 6 weeks in the beginning of 1L year and then in a capstone course. It should also include skills such as drafting.
- The law library is the laboratory of the law school and should be treated as such, not just a study hall or accessory.
- Law school IT departments should be more than just help desks.
- Faculty should be expected to be as familiar with technological innovations in the area of their legal expertise as much as legal changes.
For example, a contracts professor should not only have an idea of where relevant cases are in the federal circuit system, but they should have a handle on the various companies and organizations that are currently creating ways of automating and standardizing contracts.
- Law faculty are self-governing bodies and hold the power to change the system which many claim hold them back from effecting change.
- Academic freedom is the most important value in the academe and of vital importance to the legal ecosystem. There are ways to preserve it outside of tenure.
- The ability to type one’s own syllabi and create and manage a course management page is a baseline technological skill for teaching faculty.
- If a faculty member is both a scholar and professor, than they should be paid a single salary that allows them to perform both. Research grants, publication bonuses, external publication contracts for products written on school time and materials purchasing funds are inefficient, unfair, and , frankly, greedy.
- Legal scholarship needs to be peer reviewed and not left to the minds of inexpert 2Ls and 3Ls.
- Scholarship should not be considered only path to demonstrate expertise or faculty value. Activities such as software development should also be given equal weight in faculty hiring, promotion and retention decisions.
- Any software or scholarship produced and paid for by scholarly institution or for which the faculty member received monetary or professional benefits should be released under the appropriate open license.
- All law schools should maintain a repository of faculty scholarship and works that is functional and useable.
- Law faculty have an obligation to their students, as well as the academe at large, to create and use Open Educational Resources.
I have heard many times from faculty “the cost of books isn’t much compared to the cost of tuition” that doesn’t mean the cost of text books is reasonable or necessary. The primary building block of legal educational resources is primary law plus academic scholarships, which are either public domain or hopefully available with open license. Why pay a publisher to assemble these free items for you, especially when more often than not you will provide additions and/or change the order in the book? There is also the not insignificant fact that the format that these materials are published in are siloed and prevent true educational innovation to occur.
- Innovations in education, such as using online learning, should only be adopted for pedagogical reasons, not just to save facilities money.
- Law schools should employ or contact with educational theory professionals to improve their classroom activities.
- The primary duty to those that provide legal services is to the clients.
- The second duty is to the legal system as a whole.
- At all times those involved in the legal services industry much act in an ethical, professionally responsible and legal manner.
- Those that provide legal services should be held to higher ethical and professionally responsible standard than most professions.
- It is possible for a non-licensed attorney to provide legal services at same ethical and professionally responsible way.
- Having legal practice experience is not a requirement to comment upon or create solutions for the practice of law.
I daresay I and my colleagues have a better idea of what a solo civil practitioner in Paducah, Kentucky requires and would benefit from than a White Collar Criminal Defense Attorney in New York City. That being said, those that wish to participate in the legal system innovations market should at least have a basic understanding of how things actually work.
- The legal system is currently broken and any attempt to maintain status quo through willful ignorance or blind rejection of changes is unethical.
I look upon AltLaw deniers the same way I do Climate change deniers. You can only ignore reality for so long until you look ridiculous. Do they really care about “the truth” or “protecting their bottom line”? I think they had a similar problem – the first climate change news came out as “global warming”, and as the recent polar vortex has shown, warming isn’t the only way our environment is reacting to pollution. The first wind of AltLaw that many got was through Susskinds “The End of Lawyers” and many took that title literally. Of course there will always be lawyers. They will just be performing different tasks.
- The practice of law will be changing with or without the active participation of the bar.
Either the UPL standards will be changed to accommodate and regulate legal services industries or they will find a way to exist on the fringes and provide perhaps inadequate and harmful assistance to those that cannot afford a licensed attorney. I find similarities to abortion providers. Limiting access to abortions does not stop them. It just means that women will be forced to go underground – some of who the go to will be butcher and some will be caring and as competent as a real doctor. However, because the system exists in the shadows, the butchers will be able to exist much longer and do more damage than they would in open system.
- It is possible to reliably replicate and perform many attorney functions with technology, often faster and more inexpensively.
That being said, law is a complicated subject involving people, which are never predictable. You can’t algorithim “because fuck you, that’s why”.
- It is unethical to change attorney rates and time for actions that can be replicated more cheaply by technology.
This already happens. Do attorneys read every case published by every court? No, of course not. They initially relied upon editorial decisions performed by human and now rely upon computer programs to for searching and updating law. I’m even willing to be many many attorneys rely upon the red flags or stop signs in their citators and don’t even read the cases to double check. I know my students did….
- Through hiring practices based on law school rankings and first semester 1L grades, the bar is complicit in the ongoing failure of law schools.
- Given the ongoing importance of technology in legal practice, the legal industry should support the creation, maintenance and use of open source practice tools so that they are not at the mercy of vendors for their tools like they are research materials.
- The failure of the bar to support open law and pressure the involved government entities to publish law in a free and open format should be rectified immediately, for both ethical and monetary reasons.
Image:Bundesarchiv, Bild 183-19091-0007 / CC-BY-SA