Like many copyright lawyers, I often begin my research into a given question of law by turning to Nimmer’s treatise. I approach Nimmer exactly as I approach Wikipedia — I anticipate a solid overview of the relevant issues, direction of my next steps, and some wrong or incomplete information. A high school student would be remiss to rely on Wikipedia alone for his paper research, and I would commit malpractice if he relied solely on Nimmer’s summary of a point of law, but both of us can save some time by referencing these meta-sources on our first pass.
An outline of the possiblities
These superficial similarities prove little, but they at least raise the question of whether we could make a treatise like we made Wikipedia. In broad strokes, the projects are identical: take an enormous information resource historically prepared by a small number of experts (in this case only one!) and subdivide the work between a large quantity of lesser lights. None of these could write the thing on his own, and many of them will contribute one sentence or dependent clause that is dead effing wrong. But their efforts in aggregate will produce more and timelier information on a wider variety of topics than those of the sole treater, and obtain a relatively high average quality.
Particular problems and solutions
On closer examination, the legal treatise is different from the encyclopedia in a few important ways. First, the knowledge necessary to contribute usefully to a legal treatise is concentrated in far fewer noggins than that necessary to contribute to an article about… anything at all. Second, lawyers may have on average less disposable time in which to edit wikis than the general population. But hough we like to consider ourselves something of an elite class, everyone else knows that there are a lot of goddamned lawyers in this country. More importantly, there are a lot of goddamned law students in this country. And all self-aggrandizement about our heroic struggles through law school aside, those students have a lot more free time than lawyers. Avoidance of homework is the single greatest motivator of YouTube video-reply generation and Facebook profile-padding among high school students; law students are no less eager to join the prosumer former audience. What’s more, law students (particularly around finals time) are turning out treatise material nearly every day. Yes, it’s simplistic, latin-engorged, low-grade treatise material, but these deficiencies are more than made up in volume. And Clay Shirky told me these things are supposed to start bad.
Lawyers do this too. The low-level associates who are not combing warehouses for receipts are endlessly summarizing the most basic points of law for lazy partners — this stuff is treatise gold. Which brings me to the third important difference between lawyers and encyclopedists, which is that much of a lawyer’s work is protected in one way or another by privilege. But this objection seems to me easily overcome. Publishing notes from or even sections of documents prepared for clients, to the extent that they contain simple summaries of the law, need not raise any confidentiality concerns or expose the entire document to discovery (this is why we have redaction, right?). Besides, one need only quickly survey the wretchedly-named blawgosphere to see that lawyers are constantly blathering about the general issues they encounter in their work for clients (simultaneously demonstrating that lawyers aren’t really so hard-up for Internet dicking-around time).
Previous efforts and missteps
This has all been suggested before (and again). It has sort of been attempted. The Cornell Legal Information Institute’s Wex and the Wikilaw project are legal information wikis, but seek to provide more general legal information to the general public. EFF’s Internet Law Treatise is the closest thing to an actual test case, but the approach taken so far has maybe missed the point. The ITL has been online for a nearly a year and a half, but write access has been “invitation only” that whole time. The predictable consequence is that all of the edits in the last month except for two were made by Kurt Opsahl, the ITL’s founder. The rationale for this cautious approach is likely related to the project’s disclaimer — a (usually healthy) fear of a malpractice suit by someone who relies on the treatise as legal advice.
But there is no “right” time to open a wiki to public editing, except “right away.” As Shirky puts it, “the key to creating [the] individual actions [from which collective information resources are built], is to hand as much freedom as possible to the average user.” Anybody needs to be able to add a stub, update a page to include a summary of a recent decision, or introduce factually or legally erroneous information. If it doesn’t start bad, it probably won’t start at all (as Shirky’s case study of Nupedia illustrates). The need for the disclaimer is undeniable, but if it’s inoperative on a small scale, it will be inoperative on a large scale and the legal wiki created by lawyers is a non-starter. But I think such disclaimers are adequate, and need to be adequate if the legal profession is ever going to do anything interesting with new information tools (a potential alternative is truly anonymous posting, but this introduces policing problems and will probably discourage contributions as much as it encourages them).