The cathedral and the bazaar

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Part 2 of Law 2.0

This post represents a continuation of my earlier entry, Law 2.0. Because I am scheduled to take the stage in a few moments here at the University of Arkansas School of Law, this item will be necessarily short. I plan to return to it and elaborate my thoughts as time permits.

It suffices for the moment to invoke Eric Raymond's pathbreaking book, The Cathedral and the Bazaar. Raymond wrote specifically about the rise of Linux and open source software, but his observations have revolutionary implications far beyond software development. My specific claim is that the Law 2.0 environment, powered as it is by the democratization and diffusion of technology and legal expertise, is rapidly driving law and legal education from a centralized "cathedral" model of development to a decentralized "bazaar" model.

The cathedral and the bazaar — Turkish style

The power of Eric Raymond's metaphor, the cathedral and the bazaar, is best appreciated in real rather than virtual space. A single glance at real-world cathedrals and real-world bazaars captures the essential difference between these models of creativity. Take a look at these two images from Istanbul. At left is the dome of the great Byzantine cathedral, Hagia Sophia. At right is an image from the Grand Bazaar:

Hagia Sophia Grand Bazaar

Hagia Sophia is the product of centralized, carefully coordinated planning. It is the pinnacle of Byzantine architecture, arguably the most enduring physical manifestation of a regime that held sway in Asia Minor for a thousand years. The Grand Bazaar arose as the result of millions of market transactions over the ages. Each has its place; each has enormous cultural value. But if you are looking for the next great idea, the next innovation, the engine of social change and personal transformation. go to the bazaar.

As it is in software development and in Istanbul, so it is in law.

The cathedral and the bazaar — in legal education

In the very distant past, legal education emphatically followed a bazaar-like approach. Young people aspiring to the legal profession "read the law" under the tutelage of established lawyers. Christopher Columbus Langdell's invention of the case method at Harvard, over time, conferred supremacy on the cathedral-like approach. By treating law as a scientific enterprise, Langdell helped give the upper hand to those institutions wealthy enough to fund the laboratories and lab scientists of law: the law library and a professional, full-time university faculty. Not surprisingly, the content of the legal curriculum followed suit. The same courses Langdell thought essential to the practice of law — contracts, torts, property, criminal law, civil procedure — still hold sway in the first-year curriculum of every American law school. Some also teach constitutional law; others have tried, with variable success, to add courses addressing the rise of the administrative state. But the cathedral, from the institutional primacy of the so-called elite schools to the stranglehold of the Langdellian curriculum, still stands.

Modern legal education, however, is beginning to trend back toward a bazaar-like approach. Legal education has experienced some of the decentralization, democratization, and diffusion that characterizes technology markets. There are nearly 200 accredited law schools in the United States. Flagship state universities, comprehensive or metropolitan public universities, private universities (scandalously rich and scandalously poor), stand-alone law schools, and even for-profit law schools all take part in the fray. Every school publishes at least one law review of its own, and the proliferation of online journals, blogs, and other electronic media has eroded the influence of casebook publishers and proprietary databases.

Neither the cathedral nor the bazaar has prevailed outright in today's legal academy. The U.S. News & World Report survey still drives students and employers toward elite schools. Law schools give disproportionate weight the laws of the United States (especially the federal system, whenever it is possible to teach a federal variant on a given legal theme) and on judge-made law (especially if the judges in question are the Justices of the Supreme Court of the United States. But bazaar-style pressures loom. Anyone who cares about law students and the educational system they sustain must pay close attention to the emergence of a bimodally distributed market for starting salaries among recent law school graduates. For a striking large plurality of law students, the cathedral-style approach to legal education makes no sense. The mismatch between (immense) educational debt loads and (modest) starting salaries will surely strain the existing system. And this is to say nothing of curricular and programmatic choices that divide law schools' faculties from their students and alumni.

From Web 2.0 to Law 2.0

Let me sum up. Here are some of the salient characteristics of Web 2.0:

  • Separation of content from its form, perhaps most vividly illustrated by the transition from HTML to XML
  • "Cheap speech": The democratization and diffusion of communications technology
  • The empowerment of individual consumers of content and their transformation into producers of content in their own right
  • The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems

And here are some salient characteristics of Law 2.0:

  • Separation of legal knowledge from the institutions traditionally entrusted with its creation and dissemination
  • The democratization and diffusion of legal knowledge and authority to speak on legal matters
  • The empowerment of students and nonacademic lawyers and their transformation into producers of content in their own right
  • The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems

In Law 2.0 as in Web 2.0, the Cathedral still holds sway in significant respects. Microsoft, Dell, and Intel aren't going away, and neither are the elite law schools and their law reviews. But as every tourist in Instanbul knows, if you want some fresh ideas, go to the Bazaar.