Enhancing Legal Aid Access through an Open Source Commons Model
Yu, Allen K., Harvard Journal of Law & Technology
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
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. …