Enhancing legal aid access through an open source commons model.

• Author: Yu, Allen K.

TABLE OF CONTENTS I. INTRODUCTION II. AN OVERVIEW OF THE COMMONS PHENOMENON A. The Hackers' Movement B. The Open Source Movement C. Today's Myriad Commons Movements D. The Commons Movement in the Legal Arena E. Legal Aid Commons: A Virtual Law Firm Encompassing the Entire Professional Society III. ANATOMY OF A COMMONS COMMUNITY A. Powerful Non-Monetary Incentives 1. Commonly Shared Goals and Vision 2. Prestige, Status, and Networking 3. Skill Improvement and Intellectual Challenge B. Unbundleability of Projects C. Unique Management Structure 1. Low Barriers to Entry 2. Surprisingly Central Management IV. TOWARDS A LEGAL AID COMMONS A. Harnessing the Power of Many B. Powerful Non-Monetary Incentives 1. Commonly Shared Goals and Vision 2. Skill Improvement and Intellectual Challenge 3. Prestige, Networking, and Learning C. Leadership Grooming D. Management Style E. Democratization and Reinvigoration of the Legal Profession V. OPEN ISSUES IN CREATING A LEGAL AID COMMONS A. Unbundling Issues B. Confidentiality, Liability, and Information Security C. Conflicts Checks D. Incentives and Compensation VI. CONCLUSION I. INTRODUCTION

High quality legal services, in both civil and criminal matters, are beyond the financial reach of many people. (1) This poses a challenge to the legitimacy of civil, democratic societies founded on the notion of equal justice. In parts of Europe, access to counsel (at least in theory) is already being accepted as a right in both civil and criminal matters. (2) In the United States, legal aid, at least in the civil context, continues to be considered more a charity than a right. (3) This Article explores the commons movement as a potential model to broaden legal access. With minimal financial and capital requirements, commons can make a dramatic impact on the way legal resources are accessed, including in countries like the United States.

By "commons movement," this Article refers specifically to the modern computer commons movement that first arose in the 1950s and that exists today in various manifestations, including open source and Internet social networks. (4) A commons is a virtual community of like-minded individuals who band together to create and share a common public good deemed important to the community. (5) Common public goods can include software, information, creative works, or forums for the exchange of ideas. When properly organized and harnessed, commons can help to democratize access to scarce resources on a scale rarely seen before. (6) For example, when corporations began privatizing computer operating systems and software as proprietary corporate assets, bands of computer enthusiasts, believing that software and information should remain public goods, joined together to create open, free versions of software, operating systems, and common library routines. Today, just as the original computer community created commons versions of software, various other types of commons and social networks are creating public goods in areas as diverse as standard reference works (e.g., Wikipedia), community social bookmarks (e.g., del.icio.us), professional collaboration forums (e.g., Bioinformatics Organization), user reviews (e.g., Epinions.com and Amazon.com user review databases), and collaborative patent reviews. (7) There is no reason to believe that the legal community, properly organized and harnessed, cannot democratize legal access by making legal aid a common resource.

In the industrialized West, particularly the United States, the indigent traditionally depend upon three channels to obtain legal services. These channels are local legal aid bureau aid chapters, government agencies like the Legal Services Corporation ("LSC"), and private attorneys who take on cases on a pro bono basis. (8)

This system is often inadequate and under-resourced. (9) That the system is under-resourced is not surprising given the widespread perception of legal access as a charity instead of a right. (10) As a private charity, legal aid is often inadequate, as even the most dedicated private pro bono attorneys must balance the needs of indigent clients against the needs of their private practices. (11) As a government benefit, legal aid too often gets short-changed, perhaps because the indigent are often too politically weak to push for adequate funding of legal aid programs. (12) It is thus critical to find innovative approaches to enhance legal aid sources without significant commitment of private or government resources. The commons model offers one such approach.

2. AN OVERVIEW OF THE COMMONS PHENOMENON

   Commons projects spanning a variety of disciplines share two key characteristics: open collaboration and open sharing. Open collaboration is the cooperative participation by members of a community to create a good or resource; open sharing is the making of the good or resource freely available to all. (13) Commons existed long before computers. Examples include government publications, public libraries, public streets, public harbors, and public lighthouses. (14) This Part gives an overview of the modern, computer-based commons phenomenon, tracing some of its history, features, and recent manifestations.

   1. The Hackers' Movement

      A commons-based philosophy prevailed in the beginnings of the computer industry. (15) The groups of enthusiasts who undertook the coding of software for the first computers came to see themselves as guardians of the budding information revolution infrastructure. This core group of enthusiasts--Jedi-like in their computer skills and dedicated to optimizing and protecting the nascent computer system--were referred to in the community as "hackers." (16) Systems were set up so that "hackers" could openly and freely make fixes and patches to the communal product. On the one hand, hackers often competed against each other, routinely breaking into each other's systems in a game to best each other and to showcase their own skills. On the other hand, hackers also collaborated and freely shared code and knowledge, enabling each to learn from each other and to implement ever more robust systems.

      As the importance of computers grew, organizations began to enforce industrial management practices, prioritize software, erect security protocols, and clamp down on the free-wheeling computer culture. (17) Many computer enthusiasts rebelled, forming communities that promoted the original vision of the computer revolution--that information and software best serve society when they are public goods. (18) These groups collaborated to create alternative, open versions of the software that corporations sought to make proprietary. (19) U Using rhetoric such as "all information should be free" and "access to computers ... should be unlimited and total," these rag-tag groups of computer programmers preached a strong libertarian ideology. (20) When Richard M. Stallman started the "free software" movement, the first of the free and open-source software movements, he adopted the "cooperative spirit" and principles of the Hacker Ethic as the core values of his endeavor. (21) The open source and subsequent commons movements spawned by the original hackers would eventually also play critical roles in shaping the Internet as an open standard system freely available to all instead of a closed, proprietary system controlled by a privileged few. (22)

   2. The Open Source Movement

      Open source is one of the most successful commons movements ever created. (23) Its key strength is that it harnesses the abilities of many. (24) The open source movement began as a grassroots movement early in the growth of the software industry, when many in the programming community, believing that software and information should be openly and freely developed and shared as public goods, reacted vigorously to corporations' efforts to make software proprietary. (25) They formed virtual communities linked by computers where software was a public good created by and for users. (26) The words "open source" refer to the fact that not only is the compiled binary program freely shareable ("open"), but the "source" code in which the program is written is also shareable. The sharing of source code is important because it not only enables others to use the code, but also enables other programmers, including potential competitors, to learn the secret workings of a program and to modify the program for their own use.

      Today's powerful open source movement is responsible for creating some of the industry's most cutting-edge software, including Linux, Apache Webserver, MySQL, and OpenOffice. Open source products are so well regarded that they now routinely challenge proprietary flagship products from deep-pocketed blue chip companies such as Microsoft, Oracle, and IBM in the open marketplace. (27) Open source software increasingly powers much of the Internet today. (28)

   3. Today's Myriad Commons Movements

      The desire to create public commons versions of important resources also exists in diverse fields outside of software. (29) One of the most visible recent movements is the Wikipedia project. (30) In reaction to the lack of freely accessible basic reference resources, a group of volunteers formed an encyclopedia commons project to create Wikipedia, a free online encyclopedia. (31) Like open source software, Wikipedia is a public good resource created by a community of consumers, the readers, for a community of consumers. Anyone on the Internet can access the encyclopedia for free, and anyone can create and modify entries. Started in 2001, the English version of Wikipedia had already grown to over 1,600,000 articles by early 2007. (32) In about six years, the project has grown to encompass some 119 languages. (33) Plans are underway to provide hardbound copies for distribution in developing regions where access to the Internet is limited. (34) Other interesting examples of non-software commons movements are community-edited search...