Hacker Legal Education

Cross-posted to the Concurring Opinions symposium on Gabriella Coleman’s Coding Freedom

In my Jotwell review of Coding Freedom, I commented that “Coleman’s portrait of how hackers become full-fledged members of Debian is eerily like legal education.”

[T]he hackers who are trained in it go through a prescribed course of study in legal texts, practice applying legal rules to new facts, learn about legal drafting, interpretation, and compliance, and cultivate an ethical and public-spirited professional identity. There is even a written examination at the end.

This is legal learning without law school. Coleman’s hackers are domain-specific experts in the body of law that bears on their work. It should be a warning sign that a group of smart and motivated lay professionals took a hard look at the law, realized that it mattered intensely to them, and responded not by consulting lawyers or going to law school but by building their own parallel legal education system. That choice is an indictment of the services lawyers provide and of the relevance of the learning law schools offer. A group of amateurs teaching each other did what we weren’t.

Their success is an opportunity as well as a challenge. The inner sanctums of the law, it turns out, are more accessible to the laity than sometimes assumed. One response to the legal services crisis would be to give more people the legal knowledge and tools to solve some of their own legal problems. The client who can’t afford a lawyer’s services can still usually afford her own. More legal training for non-lawyers might or might not make a dent in law schools’ budget gaps. But it is almost certainly the right thing to do, even if it reduces the demand for lawyers’ services among the public. There is no good reason why law schools can only impart legal knowledge to by way of lawyers and not directly.

Hacker education, however, also shows why lawyers and the traditional missions of law schools are not going away. Law is a blend of logic and argument, a baseball game that depends on persuading the umpire to change the rules mid-pitch. Hacker legal education, with its roots in programming, is strong on formal precision and textual exegesis. But it is notably light on legal realism: coping with the open texture of the law and sorting persuasive from ineffective arguments. The legal system is not a supercomputer that can be caught in a paradox. The professional formation of lawyers is absent in hacker education, because theirs is a different profession.

Legal academics also play a striking role in hacker legal education. Richard Stallman was of course the driving personality behind free software. But Columbia’s Eben Moglen had an absolutely crucial role in crafting the closest thing the free software movement has to a constitution: the GNU GPL. And Coleman documents the role that Larry Lessig’s consciousness-raising activism played in politicizing hackers about copyright policy. They, and other professors who have helped the free software community engage with the law, like Pamela Samuelson, in turn, drew heavily on the legal scholarly tradition even as they translated it into more practical terms. The freedom to focus on self-chosen projects of long-term importance to society is a right and responsibility of the legal academic. Even if not all of us have used it as effectively as these three, it remains our job to try.

But it is notably light on legal realism

Bullseye! This has to be the weak side of most scientific/engineering specialists trying to understand the practice of law.

A famous story concerning Einstein and Gödel comes to mind (from Wikipedia):

On December 5, 1947, Einstein and Morgenstern accompanied Gödel to his U.S. citizenship exam, where they acted as witnesses. Gödel had confided in them that he had discovered an inconsistency in the U.S. Constitution, one that would allow the U.S. to become a dictatorship. Einstein and Morgenstern were concerned that their friend’s unpredictable behavior might jeopardize his chances. Fortunately, the judge turned out to be Phillip Forman. Forman knew Einstein and had administered the oath at Einstein’s own citizenship hearing. Everything went smoothly until Forman happened to ask Gödel if he thought a dictatorship like the Nazi regime could happen in the U.S. Gödel then started to explain his discovery to Forman. Forman understood what was going on, cut Gödel off, and moved the hearing on to other questions and a routine conclusion.

Sad and ironic, given current events and the general devolution of American democracy (no, not that kind of devolution —- this kind), that Gödel’s conclusion was probably correct, but in a totally inverse way. (Ouch… too… many… possible… hyperlinks…)