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Abstract:
Peer to Patent: Collective Intelligence, Open Review and Patent Reform argues that remedying the information deficit that impedes effective patent examination is a key to improving patent quality. The article shifts the locus of patent reform to the administrative practice of examination. It addresses the problem by proposing a new model for open examination whereby self-selected, scientific experts submit prior art with commentary to the patent examiner. Open examination combines the transparency and self-selection of public participation with the structured practices of peer review. It goes beyond them, however, by eschewing the closed conception of expertise that sometimes plagues peer review and by making legal decision-making more transparent and accountable than traditional notice-and-comment rulemaking.

Metaphorically, open examination marries the practices of Wikipedia to the authority of administrative law. By redesigning the method for patent examination, this proposal points the way towards a new approach for both intellectual property and administrative law, not by altering statutory or judicial standards, but by improving agency institutional competence. The United States Patent and Trademark Office will launch the Community Patent Review pilot in 2007 to try open examination and generate concrete data to drive reform.

patent, patent reform, patent examination, prior art, administrative law, public consultation, public participation, collective intelligence, social software, e-government, electronic government, e-democracy

Abstract:
Informal rulemaking is about to be transformed by the silent revolution of E-Government, the widespread incorporation of web-based technology in the public sector. With funding and impetus provided by the Electronic Government Act of 2002, the federal government is accelerating the transition by agencies from paper-based to electronic crafting of regulations. E-rulemaking, augurs the end of autonomous agency practice and the beginning of centralization through automation. According to current administration plans, notice-and-comment rulemaking will take place at one website under the direction of the Office of Management and Budget. This E-rulemaking Initiative is perhaps the most far-reaching such governmental transformation ever effected. At the same time, this radical overhaul is taking place without regard for how it will impact the right of citizens to participate. This Article focuses on participation in rulemaking and how technology is likely to change it.

The necessity to design information and communication systems for on-line rulemaking precipitates nothing less than a rethinking of bureaucracy itself. Having to translate rulemaking into a set of software specifications confronts the question of how to embed the desired practices for participation into the design of software. This Article argues that designing for e-rulemaking should shift the emphasis away from one-off commenting on a document and toward cultivating on-going communities of interest and expertise.

Simply putting notice and comment on-line makes the cost of speech cheaper. This only opens the floodgates to a quantity of undifferentiated public input - notice and spam. Nor does the mere right to participate ensure successful democratic practice. A legal rule by itself cannot institutionalize the capacity necessary to form communities of participation. What is crucial is the way tools might be designed to embed methods of interpersonal communication to structure dialogue. These speech tools - and the legal policy which gives rise to them - could provide the processes to make participation practicable and avoid the current situation where public comment reading has to be outsourced to third party consultants. This design-centered approach has the potential to ground the law of rulemaking in actual practice and to anchor that practice in the theory of participatory democracy and collective action.

While the Article explains the current state of electronic rulemaking on an agency-level and the central Federal Electronic Rulemaking Initiative, it proposes new designs for cost-effective speech tools for notice-and-comment rulemaking. The Article also proposes the development of dialogic methodologies to promote more collaborative, less hierarchical and more sustained policy juries and articulates the metrics for evaluating their success. Only through evaluation can OMB identify best practices and code them into the design of the tools for e-rulemaking.

administrative law, rulemaking, e-rulemaking,e-government,participatory democracy, deliberative democracy,cyberspace,cyberlaw,technology

Abstract:
Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an on-line persona or avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new social software technology that enables communities from EBay to Amazon collectively to rate their members is giving rise to meaningful identity in an online context. To determine what rules should govern on-line identity and the use of such reputational data, we should look not to constitutional, copyright or tort law, but to trademark, the area of doctrine most closely analogous. Trademarks are the collaborative creation of the source of the mark and the buying public, which associates the mark with that source. The public's interest in the mark circumscribes the property rights of the individual holder. By applying trademark theory to on-line identity we can create a better set of rules to deal with the way reputation is created in cyberspace. One key consequence of this approach is the conclusion that in order to produce reliable and persistent on-line identity, past reputational data should be preserved and widely shared.

intellectual property, trademark, indentity, cyperspace, reputation, defamation, libel

Abstract:
"Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer" examines the failure of deliberative democracy on-line. In this essay, I argue that deliberative speech, rather than free speech, is essential to the participative practices of democratic life. Deliberation is a special form of speech structured according to democratic principles. New communications technology is uniquely suited to shaping communication and transforming private conversation into public deliberation. Notwithstanding the explosion of communication outlets, there is an absence of such tools. Therein lies the root of electronic democracy's stunted growth. Just as the design of a ballot changes the result of the election, so, too, does sophisticated communications technology shape democratic practice and transform political institutions. The future success of electronic democracy requires the construction of technical architectures conducive to the goals of deliberative democracy. This Article explores seven recent experiments using web-based technologies to do deliberation on-line. It describes what these experiments have attempted and analyzes the shortcomings inherent to their design. The Article also discusses a deliberative software design experiment ("Unchat") in which I have participated and addresses the success and failure of Unchat with reference to the definition of deliberative democracy put forward in the Article. In a previous era, lawyers had to be concerned with enacting appropriate laws to preserve democracy. The "cyber-lawyer," the legal thinker practicing in the digital age, is a midwife who has to know how to bring the values of democracy into the world of code and to design technology as well as regulation to promote democracy.

democracy, e-democracy, electronic democracy, e-government, deliberation, deliberative democracy, deliberate democracy, software, cyberlaw, cyberspace law

Abstract:
In groups people can accomplish what they cannot do alone. Now new visual and social technologies are making it possible for people to make decisions and solve complex problems collectively. These technologies are enabling groups not only to create community but also to wield power and create rules to govern their own affairs. Electronic democracy theorists have either focused on the individual and the state, disregarding the collaborative nature of public life, or they remain wedded to out-dated and unrealistic conceptions of deliberation. This Article makes two central claims. First, technology will enable more effective forms of collective action. This is particularly so of the emerging tools for "collective visualization" which will profoundly reshape the ability of people to make decisions, own and dispose of assets, organize, protest, deliberate, dissent and resolve disputes together. From this argument derives a second, normative claim. We should explore ways to structure the law to defer political and legal decisionmaking downward to decentralized group-based decisionmaking. This argument about groups expands upon previous theories of law that recognize a center of power independent of central government: namely, the corporation. If we take seriously the potential impact of technology on collective action, we ought to think about what it means to give groups body as well as soul - to "incorporate" them. The Article rejects the anti-group arguments of Sunstein, Posner and Netanel and argues for the potential to realize legitimate self-governance at a "lower" and more democratic level. The law has a central role to play in empowering active citizens to take part in this new form of democracy.

Democracy, cyberspace, electronic democracy, groups, organizations, technology

Abstract:
The "State of Play" is the introductory essay to the Symposium issue of the New York Law School Law Review on law and virtual worlds. The issue compiles papers from the first annual State of Play Conference held at New York Law School (November 13-15, 2003). The State of Play, founded and organized by the Institute for Information Law and Policy at New York Law School and co-sponsored by the Information Society Project at Yale Law School and, beginning in 2005, the Berkman Center at Harvard Law School, brings together leading legal scholars with game designers and technologists, philosophers, sociologists, computer scientists and visual artists to explore the next frontier of cyberspace: the virtual world. This introductory essay identifies three major themes emerging from this pioneering exploration of law and virtual worlds. First, in order to foster these new cyberspaces as vibrant places for free expression, creativity and sociability, we must decide on the appropriate relationship between citizens of private cyberspaces and those creators who design and control them. Second, the essay asks how real world law might apply to virtual worlds and how these technologies might change real world law. Finally, the essay explores how the interfaces and technologies of virtual worlds give rise to rules, norms and social structures that, in turn allow for complex forms of collective action and governance.

cyberspace, cyberlaw, virtual worlds

Abstract:
In an era of computer networks and peer production technologies we increasingly produce both democracy and culture collectively. The group, not the individual, is the central speech actor - the crucible where individual opinions are combined and refined and where the resulting group speech is translated into action amplified by money. The group is not merely an aggregate of individual opinions but a first order actor with its own distinct voice. Hence if we are concerned about the goals of the First Amendment, we do not need to focus simply on how to facilitate and regulate free expression by individuals. Rather, we need to focus on how people speak as a group and how technology might change the conditions for group speech on-line. Groups speak (and act) by coordinating the various roles of members of the group. The ability to manage roles is crucial to developing the trust and cohesion essential to acting as a group. But technology is changing the way we divvy up roles and the way we do deliberation as part of that process. These changes are not only affecting the way groups speak, but they may also be creating the conditions for new types of group speakers to form and new ways for the group to speak as a group. This Article argues that because new technology may radically alter what it means to assume roles, it can therefore change what it means to operate as a group online. Done right, the technology itself facilitates the more dynamic, flexible and effective groups essential to free expression. We explore this contention by examining technology's impact - the challenges and opportunities - upon the ability to define, adopt and implement roles within a group. We argue for the need to create the social grid loosely modeled on distributed grid computing that may offer a paradigm for managing roles. Finally, we propose greater use of the interactive graphical screen to make the roles participants play manifest on the screen. Together, the Social Grid and this Group Avatar may allow us to see more clearly that notionally fictional social groups (organizations) have real goals, memories, actions and speech of their own. By combining a schema for managing permissions with new kinds of visual screens we will be able more easily to assign and adopt roles within a group and to speak more effectively together.

First Amendment, Constitutinal Law, Cyberspace, Software, Organization, Group

Abstract:
This article examines the possibilities and implications of employing virtual environments (VEs), immersive virtual environments (IVEs), and collaborative virtual environments (CVEs) in the courtroom. We argue that the immersive and interactive reality created by these tools adds significant value as a simulation of experience to enhance courtroom practice. The obvious boundaries between real and virtual enhance the attractiveness of these tools as technologies of rhetorical persuasion that can be used to demonstrate subjective perspective, strengthen or impeach the credibility of witnesses, and provide the trier of fact with a better understanding of each side's perception of the facts at issue. The article introduces the concepts of VEs, IVEs, and CVEs, describes the manners in which these technologies have been applied to settings other than the courts system, and review the relevant psychological and legal literature. It discusses specific applications of the technology to the court system and suggests how it could improve upon current procedures. Finally, it discusses some of the limitations and problems, and suggests legal reforms necessary to the adoption of these technologies, specifically rules of procedure that provide for all parties to be able to access, manipulate and inspect any virtual environment, the trier of fact to be able to interact with, rather than just accept the lawyer's rendition, and rules that provide for the parties to introduce at trial an inventory of all digital assets contained in the virtual environment, making those that are stipulated to and those that are in controversy.

Abstract:
This article explores how the EPA might use technology to improve the agency's level of scientific expertise and to obtain useful information faster to inform EPA policymaking. By creating a self-reinforcing collaboration between government and networked publics, new web-based tools could help produce change within government and without - namely governmental decisions informed by better data obtained through citizen participation and civic action coordinated with governmental priorities. The article discusses how EPA could use digital networking technologies to tap the expertise of members of the public to address specific "granular" scientific, economic, technological, policy, and other issues. Invoking Wikipedia and the successful Peer to Patent process used by the Patent Office to gain information and insight from dispersed experts in the patent examination process, the authors argue that collaborative web-based networking strategies could significantly improve regulatory decision-making, offset undue influence by industry and other organized interests, and provide a richer form of public participation than notice-and-comment rulemaking.