I have the privilege of being heavily involved in this project. I use the word ‘privilege’ because, since right around the time I went to law school, my home page has said something to the effect of ‘Luis’s goal is to help innovators do their thing with minimal interference from and maximum assistance from lawyers.’ ‘Helping innovators do their thing’ is exactly what this project is all about, so I’m excited to be part of the process.

Firefox Cupcake, by M i x y, used under CC-BY

We’re looking to involve the Mozilla community, of course, and we’re also looking to involve people who aren’t normally part of the Mozilla community, like licensing lawyers. So the process will involve a lot of very smart, experienced, and often opinionated people, some of whom will have been working with the license for a decade. I will get the luxury of being the project manager/cat-herder: working on this much of the day, encouraging involvement, organizing feedback, sifting it for gems, and collating all of it into the starting points we’ll use for further discussion and improvement. I’m just the organizer, though- Mitchell (as original author and tentative module owner) has the final say on the text, and the voice of the community will be the community themselves- we’re looking for broad involvement from anyone who has something valuable to say about the license or their experiences with it. If you’re interested in helping out in any way, check out our participate page for more information.

The day-to-day work that this huge community of volunteers does to produce software actively chosen by 100 million people is much more important than the legalese that binds them. But the legalese does matter- it communicates our values and helps structure how we work with each other. So improving this legalese is important for the community, and a great opportunity for me to help out, and I’m excited to get started on it.

I will henceforth refer to reading a contract as ‘looking for locomotives.’

As a bonus, and related to my recent post about plain english in the law, Wondermark is apparently working with the Center for Plain Language on a contest to reward plain (and terrible) use of plain English in communication. That is terrific to hear, and I wish them great luck with it. I only wish I had some appropriate examples to submit to the contest.

Visiting family for my birthday; if I don’t respond to your email it is because I am soaking in sunshine.

picture: UC Berkeley Law School Quote, by ingridtaylar, used under CC-BY

The classes I used wikis for were different than Eric’s- he actually assigned students to create Wikipedia articles, whereas the four classes I ended up taking with wikis all used school-hosted wikis for a wide variety of purposes:

• Three designated note-takers taking notes into the wiki, allowing the banning of laptops for other students.
• Note-taking rotating among all students, with wiki gnoming being (if I recall correctly) an ill-defined grade component, but no non-note-taking articles assigned.
• Creation of articles in a class wiki being the primary grade for the class, and with some interaction with other student’s work expected, but with no significant intent that the articles written would become a permanent resource for the public. Essays were capped at 1,000 words- which drove many students nuts but led to some fine writing.
• Creation of articles in a class wiki being the primary grade, with the intent that the class website would build up over the course of repeated class offerings to become an authoritative web asset for the scholarly community working in that area.¹

(All of these classes except the last were in technology-related courses.)

Despite these widely different set of approaches, several pieces of Eric’s commentary rang very true for me.

First, basic wiki concepts were tough. Partially, this reflects poor technology- the average wiki is needlessly hard to use.² Eric saw this in his students (“it took students a substantial amount of time to format their entries into Wikipedia’s format”) and I think it was true in my classmates as well.

But it isn’t just about the technology. Eric says “[m]ost students did not intuitively understand how to approach writing an encyclopedic treatment of a topic.” That does not ring perfectly true for me- lots of my classmates read enough of wikipedia that the format was relatively familiar- but it isn’t insane, especially given the very wide variability in the treatment of legal topics in wikipedia. It would almost certainly help to provide a sort of ‘model’ article, much like the model memos used in writing classes. Since most of the cases will be about specific statutes or cases writing two model/template articles should suffice for many classes.

Other wiki concepts, like extensive linking, or publishing drafts to the world in wiki-style, were apparently even more strange to most of my classmates. None of the four class wikis were deeply interlinked or cross-referenced, outside of what was necessary to create a table of contents and occasional outlinks to wikipedia. Similarly, few students were willing to post works-in-progress to the wiki and refine them there- most students preferred to work privately and then put a final text into the wiki. I’m not sure that law school is the right place to teach wiki nature, and indeed Prof. Goldman seems nervous about publishing student work while it is still a work-in-progress³, but still- I was surprised so few of my classmates appeared to be into the wiki way of creating iteratively edited, interlinked content.⁴

Collaboration was another angle that was difficult. Prof. Goldman says “I gave students the option of working together on a topic, but none ended up pursuing that.” This is not surprising- law schools are essentially designed to teach anti-collaboration- but it is a shame, since collaboration is a (the?) crucial skill in legal practice. Some mandatory wiki collaboration (every student required to substantively edit and fact-check another student’s work, as well as their own writing?) might be a small step in the right direction- and might also help alleviate Eric’s concern about the amount of time he spent editing and fact-checking. As a bonus, the wiki nature of the project should make it easy to grade this student editing- the edits will all be right there⁵.

All these issues make it hard to write good informative wiki-articles in a class context, but surprisingly, they also made the class-notes-in-wiki strategy fall far short of its potential. I would have thought that the lower barrier to entry (no need for perfection) and the stronger incentive for students to delve into them (so that they’d be prepared for exams) would have encouraged these wikis to become ongoing demonstrations in improvement. But instead people just had other things to do, so they tended to languish, untended, until right before exams. I think some ‘live’ wiki technologies like Wave, Etherpad, etc., will help improve that in the future (by allowing more than one editor while the class is actually happening) but until them I’m afraid wiki class notes might not get very far.

In the one class I had that was truly article-oriented, the professor provided a set of suggested questions to research and address. Prof. Goldman seems to regret not doing this from the start, but unfortunately this seems like an inevitable requirement. At the time you want students to start researching and writing they just can’t know the subject area well enough to know what is ‘missing’ from the wiki, so you almost certainly have to provide pointers for all but the most driven students. Note here that this class was in a purely scholarly area (no one was going to treat our work on English property law of the 1300s as legal advice) so we did not have some of the constraints that he felt he had with regards to making sure it was right before it was published. It would be interesting to delve into this question more- given that articles do not identify their authors as lawyers, and given that people come to wikipedia with an expectation that it is imperfect, I wonder if students can be encouraged to publish more work in earlier forms than they might otherwise.

Prof. Goldman concludes that “[i]t is unrealistic to expect that most law students can produce useful entries without supervision.” I’m not sure I’d be so harsh; I think most of my classmates were capable of doing this if prodded to, and it seems like most of Eric’s were too (after more supervision than he expected, admittedly.) But if he is right, this is a pretty sad statement to make. We’re a profession which is necessarily grounded in our ability to communicate, and we should be a profession grounded in our ability to communicate clearly and concisely to a legally unsophisticated public- that is to say, to our clients. If our students can’t write a simple encyclopedia entry, we’re in trouble.

Despite this pessimism, I think the piece gets the most important part exactly right:

I think a wiki entry might be a useful alternative to the traditional seminar paper. I have never been a huge fan of requiring students to write law review-style seminar paper in a semester-long course. Ultimately I think it’s nearly impossible for a novice to come up with a good topic and write a coherent and well-researched paper in a 4 month semester from a cold start. (I expand on that point a little here). As a result, in practice, many student seminar papers devolve into quasi-encyclopedic treatments of a topic with a paragraph of student commentary tacked onto the end. Instead of going through that charade, the professor could channel the student’s research and writing effort into an expressly encyclopedic treatment. This would reduce the pressure students feel to come up with a novel topic, and it would allow the world at large to benefit from the student’s work rather than the effort going into a desk drawer (or worse, the circular file) at the semester’s end.

In my experience, wiki writing- whether the goal is inclusion in Wikipedia or not- really should be part of the law school curriculum. It is better than traditional papers for teaching basic research and scholarship, and if done well, can also teach collaboration, editing, and other writing skills. There is still a lot to learn about the ‘done well’ part, but I hope Prof. Goldman and others continue to experiment with it. They’re doing the right thing even if their students don’t realize it yet :)

1. This separate class wiki had a lot of benefits, most notably being that student articles are never targeted for deletion as irrelevant, but obviously the segregation from the main wiki community has drawbacks too. Maybe the equivalent of the class prize for best essay should be that the best article is ‘promoted’ to main wikipedia…
2. I think real-time wiki/wysiwyg tools like Wave and Etherpad will help fix this once they mature.
3. It might make sense to ‘incubate’ student posts in a separate wiki, so that their classmates can see and participate in each other’s work, before publishing it to Wikipedia.
4. Tangentially, focusing on linking may also provide the solution to Prof. Goldman’s problem that the school requires seminar papers to be 20 pages long- one article is unlikely to be of equivalent length, but an interlinked network of articles on related cases, statutes, and topics could easily grow to that size.
5. One could imagine giving 40% credit for the article and 10% credit for the quantity and quality of edits made to other students articles, if you had an incubator wiki

To put it in computer terms, imagine the contract as a computer program. In each the object is to be able to interpret the words and have that interpretation drive a result. Now imagine that there is no compiler for your program and that you can’t run any tests. All debugging must be done only theoretically and in your head. Imagine that you are coding with another person that is likely to be trying to develop a program that does something significantly different from what you want it to do. You and the other programmer may have different time constraints and, even though you are trying to do different things, you have to be on good terms with the other person because she could just as easily decide to stop working on your project. You and the other person take turns editing the code but without a common coding environment or standard tools to figure out whether the other person (or you) goofed it up. Then imagine that the code you are writing has a high probability of only ever being “run” through two different interpreters with significantly conflicting points of view about desirable outcomes and you likely won’t get to see the result of any of these “runs.” … Include a small chance that your code will be “run” by a relatively unbiased interpreter but the outcome of that one interpretation will be at extremely high stakes, often millions of dollars. Finally, know that you will likely get little credit for writing good code but will be crucified if the one time your code is run it doesn’t work flawlessly. Now you are beginning to understand how hard the job of a good transactional attorney is.

But as they say, read the whole thing.

Modern Legal Drafting, by Peter Butt and Richard Castle

This imbalance isn’t as insane as it sounds at first; there are some not-crazy reasons to re-use old language in legal documents, and explaining why they aren’t actually correct is a useful service. Still… given that some of the complaints about legalese cited by the book are over 200 years old, you would think the profession might at least by now realize that much legalese is a bad idea, even if we haven’t yet learned how to get rid of it…

(Favorite sentence from the book: “My client has discussed your proposal to fill the ditch with his partners.“)

And so they’ve added another layer to the tea leaves with this announcement that Google will be backing out of censorship in China and possibly abandoning China altogether. Go read it.

It is hard to imagine any other American company having the cojones to make a public statement like it, and I have to applaud them for it. Google is different; anyone who tells you otherwise doesn’t understand them very well. The question we must continually ask is ‘how different, and for how long will they remain different?’ Schmidt’s quotes the other day suggest they are becoming more like others, and that is troubling, and worth writing about and reflecting on (not least by people within Google.) But to even post this is a reminder that they are still very different from most of their peer large corporations. I suppose for those of us who continue to read the tea leaves the followthrough after this post will say a lot as well.

Otherwise, it has been a good week:

• first real paycheck in waaaay too long
• moved in to our new apartment, and slept in my own bed for the first time since August (almost making me forget that I hate this mattress)
• reactivated netflix for the first time since 2006
• discovered my new apartment has cat5 through the whole building (so I can apparently get 100Mb connection at home) and a good Thai place with a $4 thai tapas happy hour around the corner.
• began my caltrain commute (long, but 90 minutes of it can be used to work, which is great) and discovered CaltrainDroid, which is terrific.

Life is beginning to feel normal again, and I couldn’t be more excited about that.

1. VOIP suggestions that work with Google Voice are welcome, and/or a gizmo invite :)

1. really, much of the legal work most lawyers do