by Bryan Kirschner on December 12, 2006 02:24pm

It’s been just over a month since I last blogged on the law-and-open-source –analogy, and, despite a cool, unrelated entry in the middle, I feel my blog karma is running dangerously low…  But—proving either that life is a journey of continuous learning and joyful surprise, or, more simply, that good things come to schlubs who drag their feet—last week not only did NPR run a story on legal apprenticeship programs, I also heard a speaker who thoughtfully referenced Foucault in a talk on fostering innovation.

The first line of reasoning was about  rather than being a case where the “source code” of the domain (law) was “closed,” law is a case where it is really, really “open:”

legal documents are almost universally  public as well, so you can seek an example of someone else’s filing, brief etc from among literally millions of such documents—from the lowliest pleading to the most momentous Supreme Court argument.  If a situation where the full text of millions of legal artifacts available freely (or for the price of distribution) aren’t like open source code…I’m not sure what is!

The implication, going way, way back to the first blog in this chain, is that it seems you can make a lot of knowledge (qua legal artifacts) “more like open” without new artifacts becoming “cheap” (lawyers still are, or at least feel, expensive).

There is a different angle, though: the  second topic was about restricting access to the profession itself.  Is law an example where the “openness” of knowledge is counterbalanced by extreme restrictions on being able to function as a lawyer—specifically  multiple years of (often expensive) law school?  In this blog entry I am going to take a stab at articulating three views on this: let’s call them “the bad scenario,” the “not bad but not great scenario,” and the “pretty cool scenario.”

(Since we’re comparing to open source development, I am going to make one simplifying assumption: having to pass a test—the bar exam—is entirely compatible with being “open.”    I say this because I see it as analogous to many OSS communities: to become (say) a committer you basically show up and start doing some work to demonstrate your skills; the test is analogous.  If the bar exam is broken somewhere in terms of content or form factor, I see that as a tweak as opposed to fundamental to the show-up-and-demonstrate-your-ability analogy.)

First “the bad scenario”  (this is where Foucault comes in). To be somewhat painfully reductive, Foucault observed there is a relationship between the structures of power and (ostensibly objective) knowledge, and that a characteristic of the modern world was the application of “discipline.”  Discipline, broadly speaking, is defining and conditioning a state of behavior that creates non-egalitarian power relationships  such that it becomes “normal”  and this dynamic becomes invisible within a formally egalitarian, “fair” and “open” environment.  The real rubber-hits the road example here would be a cycle that works like this: based on a scientific and meritocratic rationale, three years of  law school becomes a standard; as a consequence, most lawyers who pass through this system view it as both feasible(since they did it) and meritocratic (since they by definition did well, or at least well enough, in it).  In tandem, it also means lawyers are relatively scarce and expensive and have similar billing rates and incomes, because they all ponied up fairly homogeneous investments.  Thus, they have psychological and material incentive to perpetuate the system, because in rejecting it they would not only repudiate their own accomplishments, but possibly introduce competitors who could undercut them.  In the end, the system justified its own perpetuation  without controversy…because it seems to comport with the accepted paradigm of a modern profession.

On to the “not bad but not great” scenario.  This is where Spence and Signalling Theory come in. The Wikipedia entries linker above are concise so I recommend reading them: the upshot is  that for education to be used as a “signal” to help employers choose more valuable employees,  it is not necessary for education to have any intrinsic value.   The reason this is “kind of OK“—despite the fact that investing in education even if it doesn’t increase productivity seems intuitively perverse—is that at least solves a (communication) problem, and can be economically efficient.  By contrast,  the’ bad scenario”  is quite likely to cause the behavior of the system will become very, very inefficient relative to a truly open consideration of all the options.)

Finally, the “pretty cool” scenario. Seven states enable people to become residents without attending law school through some type of apprenticeship program :

In Vermont, participants don't need a college degree, but they must have completed three-quarters of their undergraduate course work. Then they have to spend 25 hours a week for four years studying alongside a licensed attorney.

In Washington state, a “law clerk”

…shall study for 4 calendar years. Each calendar year shall consist of       12 months, with a minimum of 120 hours of study each month,  including the time spent in performing the duties of a law  clerk. The tutor shall give personal supervision to the law  clerk averaging at least 3 hours each week. "Personal   supervision" is defined as time actually spent with the law  clerk for the exposition and discussion of the law, the  recitation of cases, and the critical analysis of the law clerks  written assignments.

(In both cases these positions can be paid jobs.)   This suggests a radically different paradigm for entry into the profession (one might, and Foucault might agree, a “throwback” to a previous era), and a lovely mentoring dynamic.   What’s particularly interesting is that women outnumber men in apprenticeship programs, and the typical age of the participants is older than law students.  And while at least according to NPR the likelihood of programs like these increasing, among law schools there is an increasing incorporation of paid internships and flexible schedules.

I think parallels to each scenario can be made to the open source development domain, and thinking about the “balance” of scenarios in both the legal and software development domains will be a fascinating discussion.  That blog will be along in less than 30 days, I promise….