Like the wave/particle duality of light
in modern physics, perhaps it makes
sense to regard software as both a
“work” and a service; Figure 2 outlines
the shared and unshared characteristics of these kinds of things.
Software programs share characteristics with both books and instances
of service delivery. Like books, they are
essentially textual works of authorship,
fully written in advance of their use; the
author is not present at the time of use.
Like services, they can be dynamic, bidirectional, and generative (such as by
producing case-specific answers and
documents). Unlike both, programs
operate as machines, with automated
behavior, and are rule-governed and
Any of these modes of communication can be used for the transmission
of knowledge, guidance, opinions, and
expertise. The content being delivered
can be “neutral” or tilted in favor of a
particular kind of party or point of view.
Programs as texts. When in use,
software applications typically involve
no contemporaneous human involvement by their authors. Users interact
with pre-written code, with no other
human interacting with them as they
Programs are special forms of words
and numbers, textual objects that instruct machines how to behave. Any
program can by definition be expressed
textually. You can think of them, as hypertext pioneer Ted Nelson put it, as
“literary machines.” 8
All outputs of an automated legal-
assistance system are also in the form
of textual speech acts. Delivering a
document someone can download is
not meaningfully different, except in
terms of convenience, from presenting
content that in effect says, “Here are
the words you need, in this order.”
That is, these systems not only emit
texts, they are texts.
While debate among legal scholars continues as to whether the First
Amendment extends to “symbolic”
speech like flag burning, 10 there is little
doubt it protects written texts. If I have
the right to share the text of a program
with others, and they would commit no
offense by compiling and running it,
why should I not have the right to run
the program and give them access to it?
The question of whether First
Amendment rights extend to computer
code has arisen in cases involving pub-
lication of decryption algorithms; for
example, “[C]omputer source code,
though unintelligible to many, is the
preferred method of communica-
tion among computer programmers.
Because computer source code is an
expressive means for the exchange of
information and ideas about computer
programming, we hold that it is pro-
tected by the First Amendment.”r
Like the world that inspired gamers
in Jane McGonigal’s 2011 book
Reality is Broken, 7 the legal system in many
countries is broken in many respects.
Millions of people with pressing legal
needs go without help. Courts are underfunded and overwhelmed. Many
lawyers are unemployed or underemployed. Some law schools are struggling to survive. Recent law graduates
are drowning in student loans.
Forbidding distribution of self-help
legal software is not only of dubious
wisdom as social policy, it is offensive
to First Amendment values. It is difficult to make a principled case for suppressing freedom of expression about
how the law works.
Free expression by definition need
not be “authorized.” Honest attempts
to transmit knowledge about how the
law works should not be suppressed,
at least when done in ways that do not
impersonate trusted lawyer/client relationships. Free citizens should not be
required to have a license in order to
express their understanding of how the
law works or to sell or give away such
Coded law is not something, like
hate speech at a military funeral, we
should have to tolerate due to concern
for higher values. It is an affirmative
good we should embrace.
It is in the enlightened interest of
lawyers, as well as the best interest of
society in general, to enable programmatic expression of legal knowledge.
We should be free to write code, run
code, and let others run our code. If
concerned citizens, law students, and
entrepreneurs want to create tools
that help people access and interact
r See Junger v. Daley 209 F.3d 481, 484-485 (6th
with the legal system, the government
should not get in the way.
Are citizens at liberty to create and
share software that helps others understand and interact with the legal system? Are we free to code the law?
We certainly should be.
Research for this article was partially
underwritten by LegalZoom.com. I am
also grateful to Pamela Samuelson and
Laurence Tribe for their helpful suggestions and reactions.
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Marc Lauritsen ( firstname.lastname@example.org) is
president of capstone Practice Systems and legal
Systematics, harvard, ma.