Getting Past the Future
[Originally published in the New York Law Journal, August 16 and 23, 1994]
As a teenager in the sixties, I remember being fascinated with 1984 as the ultimate “year of the future”. In my mind it blended various strands of typically American technological utopianism with disturbing Orwellian counter-possibilities. It seemed immeasurably distant, but we were all being drawn ineluctably toward it. Forty years after D-Day, would Wells, Asimov, Huxley, and others still sound plausible?
Although the personal computing and Reagan revolutions were already well underway, 1984 was not as great or horrible a year as some of us imagined twenty years earlier. For me, it turned out to be the first year of serious involvement with information technology and the law. In the meantime, I had not only managed to graduate from M.I.T. without ever knowingly touching a computer, I had endured law school, six years of practice, and several years of clinical teaching without the aid of software tools I would later come to regard as essential mental prosthetics.
I’ve spent the years since 1984 wading ever more deeply into the confluence of law and technology. My present professional life oscillates between advanced technology research at a large university law school and specialized software development in a small consulting firm. This arrangement has allowed me to get involved in a greater variety of law-and-computer developments than most people, albeit sometimes superficially. I’ve had the good fortune to see this business from the academic, real-world, abstract, concrete, non-profit, and for-profit perspectives. This article lays out some sketchy personal thoughts about where we are and where we might be going in this brave new world.
Operation Overload
I don’t know about you, but I’m getting tired of hearing about the future of computers and law. It seems that every law-related publication now features breathless commentary on how technology is revolutionizing the legal profession. Some of it is brilliant; much of it is vapid. Everywhere you turn in the legal world these days, some aspect of information technology is being predicted, promised, threatened, glorified, or vilified. New applications, services, consultants, and critics abound.
I’ve done my own share of facile prognostication and speculation. As an author occasionally called upon to write or talk about law’s technological future, I often feel like a commencement exercise speaker struggling in vain to rise above platitudes. The problem is that I believe that information technology will revolutionize law and its practice. It’s not a question of if, but when.
My office is littered with groaning stacks of legal technology books, magazines, newsletters, academic papers, software packages, and marketing material. I subscribe to dozens of publications in the law-and-technology field, attend industry gatherings at the rate of about one per month, receive fifty or so Internet mail messages a day from colleagues around the world, and check regularly into several other online communication systems like Compuserve and Lexis Counsel Connect. I participate in Internet discussion groups such as “teknoids” (for law school technology types), “cyberia” (for cyberlaw issues), and “lawprof” (what you would expect). I go to international conferences on artificial intelligence and on substantive technology in legal education, and to national conferences on legal technology generally, particular products, or related fields like publishing and law librarianship. I try to read Infoworld, Byte, Wired, The Communications of the ACM, and lots of similar publications. Sometimes I actually get real work done.
Only a minority of the readers of this article will have the same degree of focus on law/computer issues as I do, but all of us are seeing the information overload phenomenon in our respective areas of interest and activity. The world is getting bigger, faster, and more complicated, and the same technology that holds out its hand as a savior is largely responsible for creating the situation it purports to save us from.
Make Law, Not War
In a world where most things seem to be getting worse and more expensive, one of the consolations of the information technology business is that, so far, computers themselves keep getting better and cheaper.
Never before in history have technologies improved as quickly and consistently as digital computing and telecommunications. Geometric growth in such things as processing speed, storage capacity, and internetworking has become the norm. If anything, the pace of change itself is accelerating. We can make nervous jokes about hardware and software purchases being obsolete before they are delivered and installed, but our pre-industrial minds have genuine difficulty coping with the reality of constant technological revolution. Technical growth may soon be more constrained by social and psychological limits on our ability to absorb it than by engineering challenges.
The personal computer on my desk apparently has more computing power than the entire Pentagon had at its disposal throughout much of the Vietnam war. This two thousand dollar machine can do more computational labor in seconds than hundreds of human “computers” would once take weeks to perform. And I’m about to replace it because it is too old and slow.
In the decade since 1984, we have seen at least five iterations of the now familiar cycle by which information technology performance/price ratios double, providing a cumulative gain on the order of a thirty-fold improvement. Since law is such a people-intensive profession, we lawyers have only been able to squeeze out a fraction of that number in productivity growth. By merely quadrupling our overall efficiency, we have been able to halve our prices and double our incomes. There is less stress and more satisfaction in our professional work. Life is good. Right?
Maybe next year.
On the Beach
There are at least three distinct ways in which information technology stands in relation to law and its institutions. First is as a subject of legal regulation. Second is as a tool for legal workers. And third is as an analytical framework for thinking about legal phenomena. Each of these aspects of the law/computer interaction has been blossoming. Each defines a field of study and activity that has long since exceeded the capacity of any one person to master.
The subject we presently call “computer law” has of course exploded in recent years. From early concerns with intellectual property, electronic contracts, and computer crime to emerging issues about privacy and defamation in cyberspace, the legalities of how people use and are affected by information technology are the province of a new army of specialists. As society careens into increasingly computer-mediated forms of interaction and expression, we will find ourselves taking up the legal implications of public key encryption, electronic democracy, virtual sex, and the colonization of cyberspace. Some lawyers and most courts will be kept very busy.
The application of information technology to law has likewise surged in the last decade. Hardware-wise, we’ve moved from dumb terminals to standalone personal computers to networked workstations to cellular communicators. On the software side, applications have migrated outward from early back-office functions like accounting and timekeeping to front-office, lawyer’s-desktop systems for research, case management, document drafting, and communication. Lawyers, judges, and government officials have seen their characteristic professional activities respond to computer-based power tools.
It’s now commonplace to recognize and try to manage the impacts of technology on client relationships, firm structure, and life style. Law office automation has become strategic.
Even though the overall level of technology utilization in law firms has risen sharply, we still live in an era of extreme variation in attitude and implementation. Some firms take pride in riding the cutting edge, others remain blissfully backward.
As impressed as I am at the rapidity with which lawyers have adopted technology, I am surprised at how little things have changed in some places, how resistant and inertial the law practice world seems to have been. A huge amount of wasted motion and needless reinvention remains to be wrung out of the system. Clients will eventually refuse to tolerate poor information management practices at their lawyers’ offices. But in the meantime, some fabulous competitive opportunities glimmer for those willing to be technologically proactive.
We’ve just scratched the surface in applying computers to law practice. Natural language interfaces to legal research databases, voice recognition, interactive multimedia treatises, and virtual reality litigation are a few of the things that will sound less crazy in the not too distant future.
“Legal informatics” is my preferred term for that field of study that adopts the perspective, concepts, and methods of information science. Much can be gained by viewing law from the viewpoint of cognitive science and information theory. Artificial intelligence research and development on legal topics is one aspect of this field. Just as general artificial intelligence research has offered dramatic new approaches to issues of what we know and how we think, efforts to construct artificial systems capable of emulating and supporting lawyering activities can provoke new insights into the nature of legal practice. We can also attempt to model the information structures and dynamics in large systems of legal administration, such as financial market regulation or criminal justice.
The ecstasy and agony of the law-and-computers world arise from its unboundedness. Information technology seems endlessly relevant to and potentially transformative of law in each of its guises: subject, tool, and perspective. Extrapolating from current trends, we’re in for a long period of transition.
Dispatches from the Law School Front
The implications of emerging computer-related technologies for all aspects of legal education are striking and multiple.
Using the computer as a tool for education is not a new idea. There has been a long history of computer-assisted instruction (CAI) in law schools. The Center for Computer-Assisted Legal Instruction is a consortium that joins over a hundred law schools here and abroad, and boasts a substantial library of instructional modules. Interactive video “courseware” carries the basic idea of CAI into the multimedia age, allowing students to step into role with sound and visuals.
More and more law teachers are making use of applications like outliners and presentation graphics in the classroom itself. Some, like Ron Staudt at Chicago-Kent College of Law, are teaching courses in which all the materials are in electronic form.
Some current examples of educational technology at Harvard may be of interest. A year of Professor Arthur Miller’s civil procedure classes have been filmed and are being turned into a series of interactive video lessons that will enable distant students to experience some of his legendary Socratic give and take for themselves. This past January Professor Charles Nesson, who has taken to signing himself “Cyberdean” in discussions around that new electronic cracker barrel called Counsel Connect, taught an evidence course involving hands-on student experience with multimedia authoring tools. He believes that we have an ethical responsibility to teach with technology, and that the medium is the message for students who will need to know how to communicate through technology if they are to do such things as write the briefs of the 21st century. Professor Howell Jackson holds electronic office hours and moderates an online conference for students in his securities regulation course. Among other things, students can find out if they are scheduled to be called on tomorrow.
The majority of law schools in this country have not yet assumed much responsibility for teaching would-be lawyers about information technology and its significance for law. Computers usage of course is pervasive among faculty, staff, and students. Many schools offer electives on computer law subjects, and some include law practice technology in the curriculum. A handful of schools have courses on artificial intelligence and the law. But the teachers and researchers who focus on information technology as a subject of teaching, research, and scholarship still represent a discrete and insular community. (Several dozen of us will gather with fellow scholars from elsewhere in the world next month in Paris for the Third International Conference on Substantive Technology in the Law School. I remember joking during the first conference in this series that a lot of us had to travel thousands of miles to get a quorum.)
Our European colleagues are way ahead of us in these respects. There is a European Community directive on the inclusion of information technology law and applications in legal education. Virtually every law school in the Netherlands has a center for law and computers. Germany, Italy, and France have multiple centers of teaching and research in this area. Sweden and Norway have been leaders in the field since the 1960s. Legal Informatics has been a compulsory subject for all law students at the University of Lapland (Finland) since 1986. The British and Irish Legal Education and Technology Association (BILETA), which represents a robust group of technologically progressive schools and teachers in the United Kingdom, has issued guidelines on computer literacy for law students.
Harvard, Yale, Stanford, Columbia, Pittsburgh, and other universities have research centers in medical informatics, which support specialized study and advanced degrees. But no American law school yet offers a formal program of advanced studies in legal informatics.
It is my own view that all law schools should require survey courses in law practice automation and legal information science. General computer literacy can more and more be expected to have been achieved prior to law school. But no where else will the distinctive applications and implications of computers for the practice of law be taught. A lawyer will not be well educated without having had some organized exposure to the available technologies and methods of selecting, acquiring, developing, using, and managing information systems. (This stuff may belong on the bar exam.) In addition to covering basic concepts and mechanics of computer usage, these courses should be viewed as introducing students to system science and design concepts, emphasizing skills such as problem solving, requirements specification, logical analysis, and clear exposition.
We should also develop elective courses in which students are either immersed in an automated practice environment or in building systems for use in such an environment. Technology can be used as both a tool and a prism for sharpening lawyering skills and understanding the legal process. The challenge of conceptualizing lawyers’ tasks and developing competence in discharging those tasks can be enhanced by the use, study, and construction of artificial systems. The very necessity of explicitness and thoroughness in designing and using computer systems in law practice can be harnessed as a powerful new tool for instruction.
Introducing information technology both triggers and facilitates a reallocation of roles in the legal workplace, a reconception of what gets communicated and how, and a reexamination of the privileged status of legal professionals. The lawyer-client relationship itself may need to withstand some substantial revisions. These important issues deserve serious and organized study.
Lastly, it seems to me that law schools have an obligation to explore how legal technology can promote (or impede) justice, freedom, and human dignity. Can computers be used to expand legal services to more people who need them, to counteract technological isolation or victimization of the poor, to promote respect for the law? How can the bar and the academy collaborate on such endeavors?
Carpe Diem
So here we are, ten years past that once unimaginably distant future of 1984. We now gaze with awe at the year 2000 and beyond. Life in the law will undoubtedly look and feel much different then.
Your present equipment will be gone. Most of today’s familiar software titles will be forgotten. The fancy new computer I hope to install next week will be in an antique shop or hardware graveyard somewhere. (Alas, poor Pentium, I knew him well.) Today’s sophisticated expert systems and groupware environments will seem quaint. Some of us will have thrived and prospered as cybernauts; some of us will have ended up as technopeasants hitching rides on the Infobahn. But the true measure of the intervening years will be what we have managed to accomplish, not where we will have gotten to.
Modern information technology has set before us lawyers a sumptuous banquet of wonderful software and provocative new ways to organize our professional lives. While it is possible to overeat, and maybe even to get food poisoning, a lot of the banquet will go to waste if not consumed now. We have to get beyond our preoccupation with the future and make the most of the present. After all, today is part of yesterday’s future, which sure looked — and is — pretty amazing.
