Walled gardens

The most significant recent development in scholarly publishing is the open-access movement, which seeks to provide free online access to scholarly literature. Though this movement is well developed in scientific and medical disciplines, American law reviews are almost completely unaware of the possibilities of open-access publishing models. This Essay explains how open-access publishing works, why it is important, and makes the case for its widespread adoption by law reviews. It also reports on a survey of law review publication policies conducted in 2004. This survey shows, inter alia, that few law reviews have embraced the opportunities of open-access publishing, and many of the top law reviews are acting as stalking horses for the commercial interests of legal database providers. The open-access model promises greater access to legal scholarship, wider readership for law reviews, and reputational befits for law reviews and the law schools that house them. This Essay demonstrates how open access comports with the institutional aims of law schools and law reviews, and is better suited to the unique environment of legal publishing than the model that law reviews currently pursue. Moreover, the institutional structure of law reviews means that it is possible that the entire corpus of law reviews could easily move to an open-access model, making law the first discipline with a realistic prospect of complete commitment to free, open access to all scholarly output.

The laws of the virtual worlds

What if you could check out of your world, and enter a place where the social environment was different, where real world laws didn't apply, and where the political system could be anything you wanted it to be? What if you could socialize there with family and friends, build your own palace, go skiing, and even hold down a job there? And what if there wasn't one alternate world, there were hundreds, and what if millions of people checked out of Earth and went there every day? Virtual worlds - online worlds where millions of people come to interact, play, and socialize - are a new type of social order. In this Article, we examine the implications of virtual worlds for our understanding of law, and demonstrate how law affects the interests of those within the world. After providing an extensive primer on virtual worlds, including their history and function, we examine two fundamental issues in detail. First, we focus on property, and ask whether it is possible to say that virtual world users have real world property interests in virtual objects. Adopting economic accounts that demonstrate the real world value of these objects and the exchange mechanisms for trading these objects, we show that, descriptively, these types of objects are indistinguishable from real world property interests. Further, the normative justifications for property interests in the real world apply - sometimes more strongly - in the virtual worlds. Second, we discuss whether avatars have enforceable legal and moral rights. Avatars, the user-controlled entities that interact with virtual worlds, are a persistent extension of their human users, and users identify with them so closely that the human-avatar being can be thought of as a cyborg. We examine the issue of cyborg rights within virtual worlds and whether they may have real world significance. The issues of virtual property and avatar rights constitute legal challenges for our online future. Though virtual worlds may be games now, they are rapidly becoming as significant as real-world places where people interact, shop, sell, and work. As society and law begin to develop within virtual worlds, we need to have a better understanding of the interaction of the laws of the virtual worlds with the law of this world.

Amateur-to-amateur

Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. Our focus on copyright's recent history, however, blinds us to the social information practices that have always existed. In this Article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with the creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. All of the functions that copyright industries once controlled, however, are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disaggregated groups. This raises an issue for copyright as the main regulatory force in information practices: copyright assumes a central control requirement that no longer applies for the development of expressive content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably, we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

Teaching and using analogy in law

Analogy plays a central role in legal reasoning, yet how to analogize is poorly taught and poorly practiced. We all recognize when legal analogies are being made: when a law professor suggests a difficult hypothetical in class and a student tentatively guesses at the answer based on the cases she read the night before, when an attorney advises a client to settle because a previous case goes against him, or when a judge adopts one precedent over another on the basis that it better fits the present case. However, when it comes to explaining why certain analogies are compelling, persuasive, or better than the alternative, lawyers usually draw a blank. The purpose of this article is to provide a simple model that can be used to teach and to learn how analogy actually works, and what makes one analogy superior to a competing analogy. The model is drawn from a number of theories of analogy making in cognitive science. Cognitive science is the “long-term enterprise to understand the mind scientifically.” The field studies the mechanisms that are involved in cognitive processes like thinking, memory, learning, and recall; and one of its main foci has been on how people construct analogies. The lessons from cognitive science theories of analogy can be applied to legal analogies to give students and lawyers a better understanding of this fundamental process in legal reasoning.

Marxist-lessigism

Computer users of the world have united behind Stanford law professor Lawrence Lessig—and what they're doing is much more important than his critics realize.

ICANN and the concept of democratic deficit

The Internet Corporation for Assigned Names and Numbers (ICANN) is an institution besieged. It has endeavored to be democratic but its attempts to do so have been disastrous. The typical explanation for this is that the problem is with ICANN: it fails to meet its democratic obligations. My view is that the problem is with our understanding of "democracy." Democracy is an empty concept that fails to describe few, if any, of our genuine political commitments. In the real world, the failings inherent in "democracy" have been papered over by some unusual characteristics of the physical political process. However, in online trans-national institutions like ICANN, democracy is exposed as a poor substitute for a number of other conceptions of our political commitments. This Article seeks to articulate these political commitments and to explain why democracy and ICANN are such a poor mix. It begins by charting the rise of ICANN and its attempts to be democratic. It then explains why democracy is an empty shell of a concept. It then explores some features of democracy and ICANN, explaining why the online world exposes limitations in implications of democracy such as the nature of the demos, the idea of constituencies, direct democracy, voting, and the like. It concludes that ICANN's example demonstrates that democracy is in fact anything but a coherent general theory of political action. We need to consider, then, whether we should continue to berate ICANN for its undemocratic actions.

Reason is too large : analogy and precedent in law

Hunter argues that cognitive science models of human thinking explain how analogical reasoning and precedential reasoning operate in law. He offers an explanation of why various legal theories are so limited and calls for greater attention to what is actually happening when lawyers and judges reason, by analogy, with precedent.

Don't think but look : a Gestalt interactionist approach to legal thinking

We propose here a new approach to legal thinking that is based on principles of Gestalt perception. Using a Gestalt view of perception, which sees perception as the process of building a conceptual representation of the given stimulus, we articulate legal thinking as the process of building a representation for the given facts of a case. We propose a model in which top-down and bottom-up processes interact together to build arguments (or representations) in legal thinking. We discuss some implications of our approach, especially with respect to modeling precedential reasoning and creativity in legal thinking.

Out of their minds: legal theory in neural networks

This paper examines the use of connectionism (neural networks) in modelling legal reasoning. I discuss how the implementations of neural networks have failed to account for legal theoretical perspectives on adjudication. I criticise the use of neural networks in law, not because connectionism is inherently unsuitable in law, but rather because it has been done so poorly to date. The paper reviews a number of legal theories which provide a grounding for the use of neural networks in law. It then examines some implementations undertaken in law and criticises their legal theoretical naïvete. It then presents a lessons from the implementations which researchers must bear in mind if they wish to build neural networks which are justified by legal theories.

The IKBALS project: multi-modal reasoning in legal knowledge based systems

In attempting to build intelligent litigation support tools, we have moved beyond first generation, production rule legal expert systems. Our work integrates rule based and case based reasoning with intelligent information retrieval. When using the case based reasoning methodology, or in our case the specialisation of case based retrieval, we need to be aware of how to retrieve relevant experience. Our research, in the legal domain, specifies an approach to the retrieval problem which relies heavily on an extended object oriented/rule based system architecture that is supplemented with causal background information. We use a distributed agent architecture to help support the reasoning process of lawyers. Our approach to integrating rule based reasoning, case based reasoning and case based retrieval is contrasted to the CABARET and PROLEXS architectures which rely on a centralised blackboard architecture. We discuss in detail how our various cooperating agents interact, and provide examples of the system at work. The IKBALS system uses a specialised induction algorithm to induce rules from cases. These rules are then used as indices during the case based retrieval process. Because we aim to build legal support tools which can be modified to suit various domains rather than single purpose legal expert systems, we focus on principles behind developing legal knowledge based systems. The original domain chosen was theAccident Compensation Act 1989 (Victoria, Australia), which relates to the provision of benefits for employees injured at work. For various reasons, which are indicated in the paper, we changed our domain to that ofCredit Act 1984 (Victoria, Australia). This Act regulates the provision of loans by financial institutions. The rule based part of our system which provides advice on the Credit Act has been commercially developed in conjunction with a legal firm. We indicate how this work has lead to the development of a methodology for constructing rule based legal knowledge based systems. We explain the process of integrating this existing commercial rule based system with the case base reasoning and retrieval architecture.

Reasoning paradigms in legal decision support systems

In this paper we discuss the strengths and weaknesses of a range of artificial intelligence approaches used in legal domains. Symbolic reasoning systems which rely on deductive, inductive and analogical reasoning are described and reviewed. The role of statistical reasoning in law is examined, and the use of neural networks analysed. There is discussion of architectures for, and examples of, systems which combine a number of these reasoning strategies. We conclude that to build intelligent legal decision support systems requires a range of reasoning strategies.