mark nottingham

What I Learned in Law School

Thursday, 5 January 2023

Law Personal Internet

In the last decade or so, it’s become increasingly apparent that the Internet is going to be subject to more legal regulation. Because it’s a global network, this is tricky; fragmentation risk grows if regulation isn’t consistent between jurisdictions. And of course, there are all the other pitfalls of regulation — it’s difficult to agree on societal goals, much less change working systems to meet those goals without ill effect.

When I saw this happening from the perspective of a technical contributor to the Internet and Web, as well as one who’s held leadership positions such as on the W3C TAG and Internet Architecture Board, I frequently observed a gap — well-meaning technical people who didn’t understand policy issues (or worse, made naïve assumptions about how that world works), and well-intentioned policy people who didn’t have a deep understanding about how tech works.

So I decided to educate myself. Looking around, I saw several social science-based programs that focus on the Internet, but I wanted to understand the other sort of ‘code’ — the law. I didn’t want a JD; just an education in how the law works, with a focus on the Internet.

There are lots of interesting graduate-level law programs like that around the world, filled with many bright, insightful people (many of whom I now follow on Mastodon, and some who I’ve been honoured to talk with, in person or over Zoom). However, most of them were residential and long-term, and it was impractical for me to leave home and my job for months to do that.

What was practical was also in my backyard; Melbourne Law School is widely held to be something like the 5th best law school in the world, and they offer a Graduate Diploma in Communications Law. While it’s comprised of masters-level courses designed for working lawyers, they do take students without a JD, and critically the classes are ‘intensives’ — a month or two of reading, followed by a week of 9-5 classes, followed by either an 8,000 word research paper or a 5-6,000 word exam taken over a weekend. This was perfect for my needs, and because I’m in Australia, it isn’t insanely expensive.

That’s how I found myself applying to go back to school in late 2019 after over 25 years of absence. I was extremely uncertain whether I’d be able to keep up, but I figured that because I was taking one class at a time, it was worth the risk.

My first experience was a miniature introduction to the principles of the common law, required for students who don’t have a JD. We spent two days over a weekend talking about statutory interpretation, stare decisis, and legal theory. My classmates were diverse; human resources officers from all over the country looking for relevant skills, employees of regulators looking to deepen their skills, and lawyers and judges from Southeast Asia. I was hooked; this was hard, but rewarding and intellectually stimulating, to say the least. A small 5,000 word take-home exam saw me get good marks (although the class isn’t graded; it’s pass/fail). Good start.

After that came the four classes that comprised my degree — Privacy Law, Competition in Digital Markets, Digital Trade, and Regulatory Policy and Practice — over a bit more than two years (I took a leave of absence when they didn’t offer any courses that interested me because of COVID).

Suffice it to say that I had a ball; I really enjoyed every moment of this degree. Each of these subjects is deeply relevant to how the Internet functions and is regulated. My professors were experts in their fields, including a practising barrister with a speciality in privacy, an internationally renowned competition law expert, and a Brookings Institution senior fellow. I talked to my peers, wrote papers about things that interested me, and researched laterally based on what I learned in class.

It was a very different kind of fire hose than attending an IETF meeting, and luckily I found I could keep up, getting a High Distinction (the highest grade that Melbourne offers!) in each class. However, rather than recounting what the classes entailed, I want to share the larger lessons — what I saw as interesting or meaningful about the legal community and law school overall.

One thing that became immediately apparent is the sheer rigour which is required of legal reasoning. When arguing a point, you don’t just have one reason for your conclusion; you support it with three or four others. You consider as many possible counter-arguments as possible, weighing them and documenting them if necessary. This isn’t scientific; law is a very interpretive act, and it requires not only logic but also persuasion, a historical view and especially a view to policy — and politics. I know that academic rigour is more stringent than what’s typically practised in industry (especially IT!), but this is a whole different level.

Another thing that struck me was the deep ethical roots that this community has. People make offhand comments about how lawyers are unethical, or just in it for the money. While I’m sure they’re out there, what I found couldn’t be more different – these people care deeply about justice, equity, and society, but they understand that the answers that the legal system has are often nuanced and sometimes unsatisfying. There is an ethically informed depth in legal thinking (especially in the theoretic aspects) that’s lacking in the day-to-day of industry.

Just an aside - barristers are amazing people. The combination of insanely honed logical and persuasive skills is devastating in each of the examples I’ve been privileged to see – even if I disagreed with what they were arguing for.

As I talked to my classmates and professors, I found their knowledge about the tech world was severely lacking – and I’m not just talking about technical knowledge. It showed up in little ways, like the surprise that a class showed when I mentioned that it’s typical in Silicon Valley for employees to jump to a different startup fairly often (even though many of them worked for a regulator that focus on tech).

Similarly, my privacy law class was during COVID, and my professors stated a strong distrust of the Apple/Google tracing framework, saying that they’d prefer one offered by the government; my classmates agreed, but I couldn’t help but point out that they were already trusting Google or Apple by using their devices and operating systems; this didn’t seem to register at all.

I also became firmly addicted to reading academic papers, following the advice of a friend who said to ignore books because papers are where the action is at (thanks, Niels!). Right now I have 1,518 PDFs that I’ve consumed in some fashion (often reading completely, sometimes skimming), managed with Devonthink (thanks, Inger!) and a script I wrote to help with citations and metadata. Another 261 wait for me in my inbox. Good tools matter.

Library access was perhaps the most surprising thing; the richness of information available there is astounding, and since I haven’t been in school since the early 90s, I’ve never really experienced that before. And Lexis Advance is a hell of a drug for law students.

What’s next?

Officially, I graduated in early December. Far before then, I knew I was onto something good – what I’ve learned has been useful in my standards work surprisingly often, and is informing some of my current drafts, like that on centralisation.

I know enough now to understand where my primary area of interest lies — the role of technical standards bodies as transnational private regulators of the Internet. Unfortunately Melbourne doesn’t have a program that’s tailor-made for that (it’s really a combination of law, International Relations and a bit of social science thrown in), but I’m still very tempted to take four more classes to get a Master of Public and International Law, because I suspect I can still find many other interesting areas of the law to dig around in.

First, though, I need a break. Since I also need library access, I suspect it won’t be too long…