Taxonomies make the law. Will folksonomies change it?

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TAXONOMIES MAKE THE LAW. WILL FOLKSONOMIES CHANGE IT?Apr292013

Take a look at your bundle of tags on Delicious. Would you ever believe you're going to change the lawwith a handful of them?

You're going to change the way you research the law. The way you apply it. The way you teach it and,in doing so, shape the minds of future lawyers.

Do you think I'm going too far? Maybe.

But don't overlook the way taxonomies have changed the law and shaped lawyers’ minds so far.Taxonomies? Yeah, taxonomies.

We, the lawyers, have used extensively taxonomies through the years; Civil lawyers in particular haveshown to be particularly prone to them. We’ve used taxonomies for three reasons: to help legalresearch, to help memorization and teaching, and to apply the law.

Taxonomies help legal research.

First, taxonomies help us retrieve what we’vestored (rules and case law).

Are you looking for a rule about a sales contract?Dive deep into the "Obligations" category and thecorresponding book (Recht derSchuldverhältnisse, Obbligazioni, Des contrats oudes obligations conventionnelles en général, youname it ).

If you are a Common Lawyer, and ignore theperverse pleasure of browsing through Civil Codetaxonomy, you'll probably know Westlaw'sclassification and its key numbering system. It has

much more concrete categories and therefore much longer lists than the Civilians' classification.Legal taxonomies are there to help users find the content they're looking for.

However, taxonomies sometimes don't reflect the way the users reason; when this happens, you justwon't find what you're looking for.

The problem with legal taxonomies.

If you are a German lawyer, you'll probably be searching the “Obligations” book for rules concerningmarriage; indeed in the German lawyer’s frame of mind, marriage is a peculiar form of contract. But ifyou are Italian, like I am, then you will most probably start looking in the "Persons" book; marriage rulesare simply there, and we have been taught that marriage is not a contract but an agreement with noeconomic content (we have been trained to overlook the patrimonial shade in deference to thesentimental one).

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Docracy: WordPress Terms of Service are tagged with "TOS" butalso with "Website".

So if I, the Italian, look for rules about marriage in the German civil code, I won't find anything in the“Persons” book.In other words, taxonomies work when they're used by someone who reasons like the creator or–-andthis happens with lawyers inside a certain legal system–-when users are trained to use the sametaxonomy, and lawyers are trained at length.

But let's take my friend Tim; he doesn't have a legal education. He's navigating Westlaw's key numbersystem looking for some relevant case law on car crashes. By chance he knows he should look below“torts,” but where? Is this injury and damage from act (k439)? Is this injury to a person in general(k425)? Is this injury to property or right of property in general (k429)? Wait, should he look below“crimes” (he is unclear on the distinction between torts and crimes)? And so on. Do these questionssound silly to you, the lawyers? Consider this: the titles we mentioned give no hint of the content, unlessyou already know what's in there.

Because Law, complex as it is, needs a map. Lawyers have been trained to use the map. But whatabout non-lawyers?

In other words, the problems with legal taxonomies occur when the creators and the users don't sharethe same frame of mind. And this is most likely to happen when the creators of the taxonomy arelawyers and the users are not lawyers.Daniel Dabney wrote something similar some time ago. Let's imagine that I buy a dog, take the littlepooch home and find out that it's mangy. Let's imagine I'm that kind of aggressively unsatisfiedcustomer and want to sue the seller, but know nothing about law. I go to the library and what will I lookfor? Rules on dogs sale? A book on Dog's law? I'm lucky, there's one, actually: “Dog law”, a book thatgathers all laws regarding dogs and dogs owners.But of course, that's just luck, and if I had to browse through legal category in the Westlaw's index, Iwould never have found anything regarding “dogs”. I will never find the word “dog”, which is nonethelessthe first word a non-legal trained person would think of. A savvy lawyer would look for rules regardingsales and warranties: general categories I may not know of (or think of) if I'm not a lawyer. If I'm not alawyer I may not know that "the sale of arguably defective dogs are to be governed by the same rulesthat apply to other arguably defective items, like leaky fountain pens”. Dogs are like pens for a lawyer,but they are just dogs for a dogs-owner: so a dogs owner will look for rules about dogs, not rules aboutsales and warranties (or at least he would look for sale of dogs). And dog law, a user aimed, objectoriented category would probably fits his needs.

Observation #1: To make legal content available to everyone we must change theinformation architecture through which legal information are presented.

Will folksonomies make a better job?Let's come to folksonomies now. Here, the mismatch between creators (lawyers) and users' way ofreasoning is less likely to occur. The very same users decide which category to create and what to putinto it. Moreover, more tags can overlap; that is, the same object can be tagged more than once. Thisallows the user to consider the same object from different perspectives. Take Delicious. If you searchfor "Intellectual property" on the Delicious search engine, you find a page about Copyright definition onWikipedia. It was tagged mainly with "copyright." But many users also tagged it with "wikipedia," "law"and "intellectual-property" and even "art". Maybe it was the non-lawyers out there who found it moreuseful to tag it with the "law" tag (a lawyer’s tag would have been more specific); maybe it was thelawyers who massively tagged it with "art" (there are a few "art" tags in their libraries). Or was it theother way around? The thing is, it's up to users to decide where to classify it.

People also tag laws on Delicious using different labels that may or may not be related to law, becauseDelicious is a general-use website. But instead, let’s take a crowdsourced legal content website likeDocracy. Here, people upload and tag their contracts, so it’s only legal content, and they tag them usingonly legal categories.

On Docracy, I found out that a whole category of documents that was dedicated to Terms of Service .Terms of Service is not a traditional legal category—-like torts, property, and contracts—-but it was aparticularly useful category for Docracy users.

If I browse some more, I see that the WordPressTOS are also tagged with "website." Right, it makessense; that is, if I'm a web designer looking for thelegal stuff I need to know before deploying mywebsite. If I start looking just from "website," I'll findTOS, but also "contract of works for web design" or"standard agreements for design services" fromAIGA.

You got it? What legal folksonomies bring us is:

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1. User-centered categories2. Flexible categorization systems. Many items can be tagged more than once and so be put into different categories.

Legal stuff can be retrieved through different routes but also considered under different lights.

Will this enhance findability? I think it will, especially if the users are non-lawyers. And services thattarget the low-end of the legal market usually target non-lawyers.

Alright, I know what you're thinking. You're thinking, oh no, again another naive folksonomy supporter!And then you say: "Folksonomie structures are too flat to constitute something useful for legalresearch!" and "Law is too a specific sector with highly technical vocabulary and structure. Non-legaltrained users would just tag wrongly".

Let me quickly address these issues.

Objection 1: Folksonomies are too flat to constitute something useful for legal research

Let's start from a premise: we have no studies on legal folksonomies yet. Docracy is not a fullfolksonomy yet ( users can tag but tags are pre-determined by administrators). But we do haveexamples of folksonomies tout court, so my argument moves analogically from them. Folksonomies dowork. Take the Library of Congress Flickr project. Like an old grandmother, the Library gatheredthousands of pictures that no-one ever had the time to review and categorize. So pictures wereuploaded on Flickr and left for the users to tag and comment. They did it en masse, mostly by usingdescriptive or topical tags (non-subjective) that were useful for retrieval. If folksonomies work forpictures (Flickr), books (Goodreads), questions and answers (Quora), basically everything else(Delicious), why shouldn't they work for law? Given that premise, let's move to first objection:folksonomies are flat. Wrong. As folksonomies evolve, we find out that they can have two, three andeven more levels of categories. Take a look at the Quora hierarchy.

That's not flat. Look, there are at least four levels in thescreenshot: Classical Musicians & Composers > Pianists > JazzPianists > Ray Charles > What'd I Say. Right, Jazz pianists arenot classical musicians: but mistakes do occur and the good pointin folksonomies is that users can freely correct them.

Second point: findability doesn't depend only on hierarchies. Youcan browse the folksonomy's categories but you can also usefree text search to dig into it. In this case, users' tags aremetadata and so findability is enhanced because the searchengine retrieves what users have tagged--not what admins havetagged.

Objection 2: Non-legal people will use the wrong tags

Uhm, yes, you're right. They will tag a criminal law document with “tort” and a tort case involving a caraccident with “car crash”. And so? Who cares? What if the majority of users find it useful? We forget toooften that law is a social phenomenon, not a tool for technicians. And language is a social phenomenontoo. If users consistently tag a legal document with the "wrong" tag X instead of the "right" tag Y, itmeans that they usually name that legal document with X. So most of them, when looking for thatdocument, will look for X. And they'll retrieve it, and be happy with that.

Of course, legal-savvy people would like to search by typical legal words (like, maybe, “chattel”?) or byusing the legal categories they know so well. Do we want to compromise? The fact is, in a systemwhere there is only user-generated content, it goes without saying that a traditional top-down taxonomywould not work. But if we have to imagine a system where content is not user-generated, like a legal orcase law database, that could happen. There could be, for instance, a mixed taxonomy-folksonomysystem where taxonomy is built with traditional legal terms and scheme, whereas folksonomy is built bythe users who are free to tag. Search in the end, can be done by browsing the taxonomy, by browsingthe folksonomy or by means of a search engine which fishes on content relying both on metadatachosen by system administrators and on metadata chosen by the users who tagged the content.

This may seem like an imaginary system--but it's happening already. Amazon uses traditionalcategories and leave the users free to tag. The BBC website followed a similar pattern, moving from fulltaxonomy system to a hybrid taxonomy-folksonomy one. Resilience, resilience, as Andrea Resmini andLuca Rosati put it in their seminal book on information architecture. Folksonomies and taxonomies cancoexist. But this is not what this article is about, so sorry for the digression and let's move to the firstprediction.

Prediction #1: Folksonomies will provide the right information architecture for non-legal

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users.

Taxonomies and folksonomies help legal teaching.Secondly, taxonomies help us memorize rules and caselaw. Put all the things in a box and group them on thebasis of a common feature, and you'll easily rememberwhere they are. For this reason, taxonomies haveplayed a major role in legal teaching. I’ll tell you a littlestory. Civil lawyers know very well the story of Gaius,the ancient Roman jurist who created a successfultaxonomy for his law handbook, the Institutiones. Histaxonomy was threefold: all law can be divided intopersons, things, and actions. Five centuries later (fivecenturies! ) Emperor Justinian transferred the verysame taxonomy into his own Institutiones, a handbookaimed at youth "craving for legal knowledge" (cupidalegum iuventes). Why? Because it worked! Howpowerful, both the slogan and the taxonomy! Indeedmore than 1000 years later, we found it again, with afew changes, in German, French, Italian, and SpanishCivil Codes and that, in a whole bunch of nutshells, explains private law following the taxonomy of theCodes.

And now, consider what the taxonomies have done to lawyers’ minds.

Taxonomies have shaped their way of considering facts. Think. Put something into a category and youwill lose all the other points of view on the same thing. The category shapes and limits our way to look atthat particular thing.

Have you ever noticed how civil lawyers and common lawyers have a totally different way of looking atfacts? Common lawyers see and take into account the details. Civil lawyers overlook them because thetaxonomy they use has told them to do so.

In Rylands vs Fletcher (a UK tort case) some water escapes from a reservoir and floods a mine nearby.The owner of the reservoir could not possibly foresee the event and prevent it. However, the House ofLords states that the owner of the mine has the right to recover damages, even if there is nonegligence. ("The person who for his own purpose brings on his lands and collects and keeps thereanything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is primafacie answerable for all the damage which is the natural consequence of its escape.")

In Read vs Lyons, however, an employee gets injured during an explosion occurring in the ammunitionfactory where she is employed. The rule set in Rylands couldn't be applied, as, according to the Houseof Lords, the case was very different; there is no escape.

On the contrary, for a Civil lawyer the decision would have been the same in both cases. For instance,under Italian Civil Code (but French and German Codes are not substantially different on this point),one would apply the general rule that grants reward for damages caused by "dangerous activities" andrequires no proof of negligence on the plaintiff (art.2050 of the Civil Code), no matter what causes thedanger (a big reservoir of water, an ammunition factory, whatever else).

Observation#2: taxonomies are useful for legal teaching and they shape lawyers minds.

Folksonomies for legal teaching?

Okay, and what about folksonomies? What if the way people tag legal concepts makes its way into legalteaching?

Take the Docracy's TOS category—have you ever thought about a course on TOS?

Another website, another example: Rocket Lawyer. Its categorization is not based on folksonomy,however; it's purposely built around a user’s needs, which have been tested over the years, so in a waythe taxonomy of the website comes from its users. One category is "identity theft", which should be quitepopular if it is prompted on the first page. What about teaching a course on identity theft? That wouldmerge some material traditionally taught in privacy law, criminal law, and torts courses. Some courseareas would overlap, which is good for memorization. Think again to the example of “Dog Law” byDabney. What about a course about Dog Law, collecting material that refers to dogs across traditionallegal categories?

Also, the same topic would be considered from different points of view.

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What if students were trained to the specifications of the above-mentioned flexibility of categories? Theywouldn’t get trapped into a single way of seeing things. If folksonomies account for different levels ofabstractions, they would be trained to consider details. Not only that, they would develop a very flexibleframe of mind.

Prediction #2: legal folksonomies in legal teaching would keep lawyers’ minds flexible.

Taxonomies and folksonomies SHAPE the law.Third, taxonomies make the law applydifferently. Think about it. They are the veryhighways that allow the law to travel down to us.And here it comes, the real revolutionarypotential of legal folksonomies, if we were tomake them work.

Let's start from taxonomies, with a couple ofexamples.

Civil lawyers are taught that Public and PrivateLaw are two distinctive areas of law, to whichdifferent rules apply. In common law, the

distinction is not that clear-cut. In Rigby vs Chief Constable of Northamptonshire (a tort case from UKcase law) the police—in an attempt to catch a criminal—damage a private shop by accidentally firing acanister of gas and setting the shop ablaze. The Queen's Bench Division establishes that the police areliable under the tort of negligence only because the plaintiff manages to prove the police’s fault; theyapply a private law category to a public body.How would the same case have been decided under, say, French law? As the division between publicand private law is stricter, the category of liability without fault, which is traditionally used when damagesare caused by public bodies, would apply. The State would have to indemnify the damage, no matter ifthere was negligence.

Remember Rylands vs Fletcher and Lyons vs Read? The presence of escape/no escape wasdeterminant, because the English taxonomy is very concrete. Civil lawyers work with taxonomies thathave fewer, larger, and more abstract categories. If you cause damages by performing a risky activity,even if conducted without fault, you have to repay them. Period. Abstract taxonomy sweeps out anyconcrete detail. I think that Robert Berring had something like this in mind--although he referred to legalresearch--when he said that “classification defines the world of thinkable thoughts”. Or, as Dabneyputs it, “thoughts that aren't represented in the system had become unthinkable”.So taxonomies make the law apply differently. In the former case, by setting a boundary between thepublic-private spheres; in the latter by creating a different framework for the application of moreabstract or more detailed rules.

You don't get it? All right, it's tough, but do you have two minutes more? Let's take this example byDabney. Key number system's taxonomy distinguishes between Navigable and Non-navigable waters (inthe screenshot: waters and water courses). There's a reason for that: lands under navigable waterspresumptively belongs to the state, because “private ownership of the land under navigable waterswould (…) compromise the use of those waters for navigation ad commerce”. So there are twocategories because different laws apply to each. But now look at this screenshot.

Find anything strange? Yes: avulsion rules are“doubled”: they are contained in both categories. Butthey are the very same: rules concerning avulsiondon't change if the water is navigable or not (checkavulsion definition if you, like me, don't remember whatit is ). Dabney: “In this context,(...) there is nodifference in the legal rules that are applied thatdepend on whether or not the water is navigable.Navigability has an effect on a wide range of issuesconcerning waters, but not on the accretion/avulsionissue. Here, the organization of the system needlesslyseparates cases from each other on the basis of anirrelevant criterion”. And you think, ok, but as long aswe are aware of this error and know the rules

concerning avulsion are the same, it's not biggie. Right, but in the future?

“If searchers, over time, find cases involving navigable waters in one place and non-navigable waters in

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Posted by manzoli at 10:39 am

8 Responses to “Taxonomies make the law. Will folksonomies change it?”

1. Michael Dore says:April 29, 2013 at 11:40 am

Interesting article. You may want to take a look at some medical ontological systems such assnomed to see how that technology was developed and has evolved in both development anduse over the years.

Thx.MD

2. manzoli says:April 29, 2013 at 12:46 pm

Thank you, Michael. Indeed it looks like a usable ontology (I thought those things existed only indreams and research papers).I will definitely play around with it!S.

another, there might develop two distinct bodies of law.” Got it? Dabney foresees it. The way wecategorize the law would shape the way we apply it.

Observation #3 Different taxonomies entail different ways to apply the law.

So, what if we substitute taxonomies with folksonomies?

And what if they had the power to shape the way judges, legal scholars, lawmakers and legal operatorsthink?

Legal folksonomies are just starting out, and what I envisage is still yet to come. Which makes thisarticle kind of a visionary one, I admit.

However, what Docracy is teaching us is that users—I didn't say lawyers, but users—are generatingdecent legal content. Would you have bet your two cents on this, say, five years ago?What if users started generating new legal categories (legal folksonomies?)

Berring wrote something really visionary more than ten years ago in his beautiful "Legal Research andthe World of Thinkable Thoughts". He couldn't have folksonomies in mind, and still, wouldn't you thinkhe referred to them when writing: "There is simply too much stuff to sort through. No one can write acomprehensive treatise any more, and no one can read all of the new cases. Machines are sorting forus. We need a new set of thinkable thoughts. We need a new Blackstone. We need someone, or morelikely a group of someones, who can reconceptualize the structure of legal information."?

Prediction #3 Legal folksonomies will make the law apply differently.

Let's wait and see. Let the users tag. Where this tagging is going to take us is unpredictable, yes, but ifyou look at where taxonomies have taken us for all these years, you may find a clue.

I have a gut feeling that folksonomies are going to change the way we search, teach, and apply the law.

Serena Manzoli is a legal architect and the founderat Wildcat, legal search for curious humans. She hasbeen a Euro bureaucrat, a cadet, an in-housecounsel, a bored lawyer. She holds an LLM fromUniversity of Bologna. She blogs at Lawyers areboring. Twitter: SquareLaw

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3. Manzoli on Legal Taxonomies and Legal Folksonomies | Legal Informatics Blog says:April 30, 2013 at 6:05 pm

[...] Manzoli, LL.M., has published Taxonomies Make the Law. Will Folksonomies Change It?, at[...]

4. Frank says:July 23, 2013 at 1:08 pm

This article could not be timelier when we consider the topic in the context of the movements foropen data, open government, and linked open data. Although I would not go as far as afolksonomy, I hope to develop an ontology for legal terminology that is both multilingual andsensible to everyday people (like me). Our world is changing, and our consideration andtreatment of legal terminology needs to change with it.

5. manzoli says:July 23, 2013 at 3:58 pm

Hi Frank, thanks. As far as I know, legal ontologies have given quite disappointing results sofar. Maybe because they want to reach agreement on legal terminology or keep consistency atany cost. what do you think? A folksonomized ontology maybe could be the answer...

6. Frank says:July 30, 2013 at 1:59 pm

I agree with your opinion of existing legal ontologies, Serena, insofar as I am familiar with them.In my view, the contribution of folksonomies in law can be similar to that of search-engineoptimization in the development of a website. Neither a law nor a website is very useful if itcannot be found and understood by the people whom it affects.

The opposition of taxonomies and folksonomies reminds me of some of the analyses that I haveread of the writings of Antonio Gramsci. Like Gramsci’s “philosophy of praxis,” the bestclassification system for legal terminology is probably somewhere between a taxonomy andfolksonomy.

7. Bruno Costa Teixeira says:September 28, 2013 at 1:45 am

Hello Serena,

Great article! Folksonomy can really transform the way we understand legislation!

Google Ideas supported the Comparative Constitutions Project(http://comparativeconstitutionsproject.org) to build Constitute(https://www.constituteproject.org), a site that digitizes and makes searchable the world’sconstitutions, by topics, dates and coutries.

Do you know those projects?

Although they have not used the collective intelligence of the users to organize information (on"bottom-up" way), it is already a good start. Now it is necessary, as you said, "somewherebetween a taxonomy and folksonomy".

8. manzoli says:September 30, 2013 at 11:09 am

Hi Bruno, yes, I know the Constitute Project.

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I do like it because it makes the provisions searchable on the basis of topics and countries: agood part of legal understanding is given by the way you rearrange, shuffle and present thelaw, making it more accessible. Information architecture indeed. Also, it's super usable andgraphically very sexy.

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