![\"pdust\"](\"http:\/\/blog.law.cornell.edu\/tbruce\/files\/2013\/06\/pdust.jpg\")
<\/a>These days, people \u00a0are sticking legislation into GitHub at a furious pace. \u00a0It is all the rage among the legal-information smart set. \u00a0The whole thing seems to have started about fifteen months ago with a quote from a toiler in the vineyards of the New York State Senate, written up in Wired<\/em>, the Boy\u2019s Life<\/em> of the technorati. \u00a0Said he: \u201cI\u2019m just in love with the idea of a constituent being able to send their state senator a pull request\u201d.<\/p>\nI could speculate hilariously as to what some of our scandal-ridden New York State Senators might think a \u201cpull request\u201d is, but that\u2019s neither here nor there. \u00a0A lot more people appear to be just in love with this idea, too, because in the last year there has been a rising tide of legislative gittification here and elsewhere around the globe. \u00a0I myself am just in love with the name of the German \u201cBundesGit\u201d project, \u00a0which the smart money is putting at 5 to 1 to win the Greatest \u00a0Cognitive Dissonance Packaged in a Compound Word category at this year\u2019s Noamy Awards.<\/p>\n
Trouble is, I\u2019m not so just in love with gittification as everybody else seems to be. \u00a0Here\u2019s why:<\/p>\n
Git and GitHub are, collectively, a fine revision-control system, and a good system for distributing and managing open-source coding efforts like the ones at https:\/\/github.com\/unitedstates<\/a>. Unfortunately, straightforward revision and versioning are not really what happens with most legislation hereabouts. American Federal legislation is not a straightforward revision process at all. \u00a0That is especially so when post-hoc codification results in an issue-centric bill being splattered all over the topical map of the US Code. \u00a0Other jurisdictions — notably civil-law countries — at least pretend to have a more rational process for legislative revision, though I am told that in practice it is not so pretty as all that. \u00a0 \u00a0They are, by and large, having some success with FRBR-based models which closely resemble revisions control, but for a number of reasons those don’t work as well as they might for Federal legislation. \u00a0Simple processes in which a single version of \u00a0text is successively modified and the modifications absorbed into a series of versions and branches are not quite enough to map the eddies and backwaters of our process, in which multiple competing drafts of a bill can exist at the same time, bills can be reintroduced in later sessions, and so on.<\/p>\n I am far from the first person to make this point. \u00a0Others have done so very effectively right along, \u00a0but the story does not end there. The beauties of revision management do not \u00a0explain why we are hearing so much git-love. \u00a0There must be more to be just in love with than the idea that you might keep track of changes in the language of a bill.<\/p>\n I think there are three pieces to it, really. \u00a0One is the idea that somehow the gittification paradigm describes what \u00a0the system *ought* to be, and represents the aspirations of its proponents; one is the idea that putting law in github somehow magically puts ownership of the law where it belongs; and one is the idea that gittification is somehow democratizing.<\/p>\n As to the first, everybody would like a simpler system. \u00a0Belief that putting the text into a particular instrument could or would bring that about is a species of wistful, wishful thinking that is the unique province of technicians. \u00a0Technical people of all stripes believe that about a lot of things — the idea that somehow just having the right tool changes both the materials and the quality of the workmanship are an understandable and appealing part of the romance of geekdom. \u00a0And sometimes a change in tooling brings about an unmistakable and positive change in way things really are. I am thinking, for some reason, of the invention of interchangeable parts, which obviously brought about vast changes in manufacturing and ultimately in everyone\u2019s standard of living — and also gave rise to a crop of industrial utopias founded in the belief that virtue would flow from industrial organization: \u00a0the Ephrata Cloisters and New Harmonies of more a century-and-half back.<\/p>\n I\u2019m OK with certain amount of techno-utopianism; a lot of good ideas got their start in those cloisters. \u00a0But the romance of gittification is part of a \u00a0more expansive intellectual conceit — the idea of law as code. \u00a0Lessig brilliantly described idea of code (and technology generally) shaping behavior and potential in ways traditionally reserved for law. \u00a0\u00a0But code-is-law is not reversible into law-is-code. \u00a0There are lots of reasons why not; some are facets of the process by which law is created, and some have to do with how the language works and what it is expected to do. \u00a0Law is nowhere near as deterministic or precise as code and the process that creates it is a lot messier. There is often carefully calculated imprecision in statutes and regulations. \u00a0Geeks don\u2019t like that, because they want law to be more computationally tractable, \u00a0and they \u00a0often say so loudly in the same forums where legislative gittification gets a big round of high-+1s. Imprecision has a very valuable purpose in law, where flexibility of interpretation is often desirable, and not so much in code. \u00a0If you want to know what \u201claw is code\u201d looks like, consider the rigidly precise algorithms of the Federal sentencing guidelines, or the \u201cthree strikes\u201d law, and tell me if it looks like Utopia to you.<\/p>\n But I\u2019m just being cranky, sorta. \u00a0There\u2019s nothing wrong with romance, even if it is unlikely to produce meaningful change, \u00a0so long as we avoid confusing it with having actually caught<\/em> the unicorn. \u00a0There is also a lot that is admirable about a community wanting ownership of the law that it is expected to live by. The slogan of SwaziLII — an open-access legal publisher in Swaziland — is \u201ckwetfu\u201d . \u00a0It means \u201cit is ours\u201d. \u00a0In South Africa, visitors to Johannesburg are shown, with great pride, \u00a0the public monument to the 1994 Constitution. \u00a0It\u2019s important that people feel ownership of the law. \u00a0Postcolonial societies feel it strongly, and they celebrate it and they build monuments to it. \u00a0Geeks stick things in github as a way of claiming it for their culture. \u00a0In that respect gittification is a symbolic act that says a lot about where we are in 2013 and why. \u00a0\u00a0I respect the symbolism, and think it\u2019s a shame that we have been collectively driven to such a need to reassert ownership. \u00a0I just don\u2019t want to confuse the symbolism with something that improves the substance.<\/p>\n But what about democratization? \u00a0We may be just in love with the citizenry submitting pull requests, but that doesn\u2019t mean the citizens have any idea how. \u00a0And it is a little disturbing to think that we might be subconsciously restricting our definition of citizenship to those who can<\/em> submit pull requests. \u00a0I say that mostly for effect — I don\u2019t think that anyone is being consciously elitist here. \u00a0But I do think that many of the same people who celebrate gittification also routinely (and loudly) \u00a0condemn government behavior that is unwittingly exclusionary in exactly the same way that GitHub is. It\u2019s natural for technicians of all stripes — whether they are legislative, \u00a0political, and policy wonks, or people who frequent hackathons, or all of the above — to become so acclimatized to their own technical knowledge and environment that they forget that others just don\u2019t have a clue about any of that stuff, and are effectively shut out. \u00a0The biggest problem with legal information has always been that the people who create it have no reason to realize that there is a problem with access, because they themselves have it. \u00a0And in that respect the Gitterati are no different.<\/p>\n Once upon a time, regulations.gov was useless if you didn\u2019t know a lot about what agency regulates what. Today, you can\u2019t be a citizen of \u00a0New GitHarmony if you don\u2019t know how to turn the knobs of GitHub. \u00a0That\u2019s not an argument against making systems that permit citizen participation in the legislative process. I\u2019ve never liked the sort of don\u2019t-bring-gum-to-school-unless-you-bring-enough-for-everyone, digital-divide arguments that some use to bludgeon Internet projects. \u00a0You have to start somewhere, and maybe it\u2019s worth remembering that we haven\u2019t shut down the libraries because the basic literacy rate in the US is under 100%. \u00a0\u00a0\u00a0But don\u2019t imagine for one moment that an average constituent is going to submit a pull request. \u00a0And think about who you\u2019re really speaking to. \u00a0As of January, 2013, the population of the United States was estimated at 315,968,000. \u00a0GitHub claims 3 million users, not all of whom are in the US. \u00a0Sounds an awful lot like the 1 percent to me.<\/p>\n","protected":false},"excerpt":{"rendered":" These days, people \u00a0are sticking legislation into GitHub at a furious pace. \u00a0It is all the rage among the legal-information smart set. \u00a0The whole thing seems to have started about fifteen months ago with a quote from a toiler in the vineyards of the New York State Senate, written up in Wired, the Boy\u2019s […]<\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/posts\/148"}],"collection":[{"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/comments?post=148"}],"version-history":[{"count":3,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/posts\/148\/revisions"}],"predecessor-version":[{"id":152,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/posts\/148\/revisions\/152"}],"wp:attachment":[{"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/media?parent=148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/categories?post=148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/tbruce\/wp-json\/wp\/v2\/tags?post=148"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}