I spent my formative years in Illinois and part of my college years and working years in Iowa. I have seen my share of silos. But the silos lawyers construct top anything scattered among the cornfields. If we had a silo competition, lawyers would take the top prizes every year. The closest I found was a silo competition focusing on how to re-purpose old silos. Since lawyers keep using their silos, it won’t help us.
Finding ways lawyers enforce the silo mentality is easy. We can start with the basics: lawyers and non-lawyers. You are either in the silo or outside the silo, no middle ground. We cling to the belief that law is a monopoly, with rights to practice law granted by each of the states. That makes a lot of silos. You can join several silos, but it is a complicated process involving years of training on the secret handshakes.
We have some silos that touch our lives for a brief period—three years, to be exact—the law schools. Apart from the residual ego-boosting, social status pumping, or job-getting benefit of a law school’s name, three years pass and we fugetaboutem.
The silo list goes on. Law firms build walls between themselves and clients (strange, but true). Clients stay separate from law firms, consulting firms, law schools, and everyone else. Technology vendors are each to their own. You feel me?
In my talks, presentations, and interviews I suggest we breach the silos. Forget that other professions have done so. Forget the it would benefit all of us. Forget that it makes sense, could reduce costs, would increase efficiency and would improve quality. Let’s get to the heart of the matter: it would result in a lot of rip roarin’ parties! But I digress.
Removing the silos is a logical step in moving from our pre-20th century agrarian view of the world to a post-Industrial Age profession. Understanding how silly the silo structure is depends at times on the little things. For that idea, we can look to digital object identifiers.
Publishers throughout the academic world and many other deep scholarly environments, such as movie studios, use digital object identifiers (DOI). How many you ask? Over 5,000 entities have assigned over 133 million DOIs, which connect to media viewed over 5 billion times each year. So, a lot.
What is a DOI? It is an “actionable, interoperable, persistent link” to media. In other words, it is a unique identifier that a digital item calls its own. Wondering whether you should read Nudge by Richard H. Thaler and Cass R. Sunstein (you should)? Perhaps you would want to read a book review by Thomas C. Leonard. He says, “Though costumed in the guise of pop economics, complete with a cute logo—Nudge is, in fact, a manifesto for the new paternalism.” The DOI for Leonard’s book review is: 10.1007/s10602-008-9056-2. That DOI uniquely dentifies Leonard’s book review.
We have had DOIs since 2000. The DOI system is a standardized system—Digital Object Identifier System (2012), ISO 26324. It is international. The DOI Handbook and other information necessary to participate in the DOI system is online and open access.
You can use DOIs in many ways. In citations, a DOI points to a unique item—no confusion. If you posted the item on a publishing site that uses DOIs, you have a persistent link to the item. Since computers can capture DOIs, they can show the relationships among published items. Think of the many ways a legal citation can appear and consider the difficulty in training a computer to know all of those formats. DOIs have one format. Computers can scan all published materials and show the inter-relationships.
DOIs are “extensible by design to any sector.” If we assigned a DOI to each reported decision from the courts, we could show linkages among cases without trouble. Yeah, but look at that thing—the DOI is long. No problem! Use the shortDOI and that unique identifier for Leonard’s book review becomes 10/cp6mx8 (or, http://doi.org/cprmx8 if you prefer the link). What would happen if case citations changed to DOIs? We could make citations easy and accurate: Smith v. Jones, shortDOI (date).
We could go further. Each brief, motion, order, and other paper filed as part of a lawsuit could have a DOI. Instead of developing complex algorithms to link documents in PACER or try to discern from titles or other materials what relates to what, include the DOIs.
The Legal DOI Blockade
I have encountered DOIs as I increase my publishing. That led me to the legal world’s ignorance of DOIs. In 2010, Benjamin J. Keele published, “What If Law Journal Citations Included Digital Object Identifiers? A Snapshot of Major Law Journals.” If you want to read the article, use the DOI: http://dx.doi.org/10.2139/ssrn.1577074. As Keele notes, “DOI has become the standard digital identifier for scholarly publishing, with most hard science and many social science and humanities publishers using DOIs for their articles.” Keele did a study. He checked 1,041 articles and found that 37.8% had DOIs. Articles published in law journals: “most major law journal articles did not have DOIs assigned to them.”
Becoming part of the DOI community is easy. Despite the ease, lawyers and legal publications persist in the silo mentality on knowledge. If we dropped that mentality for publishing, these are a few ways we could benefit:
- Access to Justice. If we published legal materials including cases, statutes, articles, etc. using DOIs, those who need the materials would have easier access to them. We want people to access the law, explanatory materials, forms they need to file, and anything else that eases the path to interacting with the legal system.
- Since each DOI points to a unique thing, we avoid confusion. The citation system lawyers use attempts to get us to the correct, unique thing by throwing information at the reader in the hope that enough information will lead us to the correct material. A short DOI string does the same thing.
- Lawyers and all others who work with legal materials can avoid learning, spending time deciphering, and navigating complex citation systems. One DOI finishes the task. Imagine the reduction in time spent learning and using the Bluebook.
- Want to go to the third concurring opinion in that recent Supreme Court case? No problem. We can assign a DOI to the entire case and a separate DOI to each opinion. In fact, we can go further. We can assign a DOI to each paragraph, quote, or other segment. The Dodd-Frank Wall Street Reform and Consumer Protection Act covered 2,300 pages. Citing to specific sections means tracking through the byzantine sections, subsections, sub subsections, etc. Instead, we could assign granular DOIs. A DOI becomes an active URL by appending it to “http://dx.doi.org” and pasting it into a web browser. No confusion. The DOI takes you to the most current, official version of the statute.
- Lawyers want to sit at the table and talk strategy. We want to share our thoughts and show leadership through them. But if we build silo walls , we become irrelevant. Make it easy to find, share, and discuss what we think and we become part of the community.
The Ideas Marketplace
Gillian Hadfield, in her book Rules for a Flat World explains the absence of markets in the legal infrastructure. The legal infrastructure, a term she coined, is everything “law,” including the institutions. The market absence, she argues, holds back law from effectively handling society’s increasing demands for guidance and regulation. With a few exceptions, I agree with what Professor Hadfield says.
DOIs facilitate participation in the marketplace of ideas. By making our ideas easy to find and easy to incorporate with ideas from other disciplines, we join and participate in that marketplace. Economists should have easy access to what lawyers publish, but so should technologists, sociologists, biologists, and ethicists. Are we all cool with technologists creating the algorithms for AI independent of (and perhaps lacking knowledge of) existing law? When the autonomous vehicle has to choose who to kill, is it a technical and ethical question devoid of legal implications?
Many thought we crossed this bridge in the 1920s. Columbia’s and Yale’s law schools looked beyond law to the social sciences. At first, the current and prospective faculty (including future Supreme Court Justice William O. Douglas) engaged in bitter battles. But, the schools found a happy medium. They refrained from becoming the social science research focused institutions some favored, but social science became part of legal study and education.
Since that time, the trend to crossover from law to social science or the reverse accelerated (with peaks and valleys). Today, seeing law professors with PhDs has become common. Some law schools, including my alma mater Northwestern’s Pritzker School of Law, have developed new reputations as hubs for this silo-breaking, multi-disciplinary approach. But, apart from these tidbits, lawyers and law resemble those siloed cornfields I got to know in Illinois and Iowa. Want to know what lawyers think? Join us or stay out of our silo.
We can rail against the institutions or start fixing the problem. We can start with those pesky DOIs. Each time you write an article, ask the publisher if it assigns DOIs to the articles it publishes, assuming the article will appear online. If the publisher says no, push the publisher to start using them. The process to participate in assigning DOIs is beyond simple, so any excuses ring hollow. If you get a DOI for an article, use it whenever you cite the article and encourage others to do the same.
Add your article to the body of knowledge. If you publish your article in a traditional journal and it uses DOIs, indexing services can capture the DOI. You can use other vehicles to get your ideas out in addition to that lawyer trade journal. Authorea, ResearchGate, SSRN, SocArXiv, and Academia are publication outlets (and for most purposes, they are free). Try to retain pre-print or post-print rights to your article, even if you must assign the copyright. Ask whether the publication permits you to self-archive. Use your rights and publish through one of these vehicles. All of them give you ways to get your knowledge and research in the public domain, even if access to the final version or typist version remains behind a paywall. Don’t let legal publishers benefit from your work and exclude you from benefitting and helping the community.
Of course, being part of a knowledge community means you should access knowledge beyond articles outside the law silo. It seems that every day, I hear a lawyer speculate on how to address an issue outside the law. Checking, I find articles and books addressing the topic. But, the lawyer—staying within his or her silo—fails to look for the knowledge that exists. Clients pay for those knowledge deficits. By exploring the larger knowledge community, lawyers benefit from the work of others who have tackled many of the tough problems.