Vol. 5 No. 9 (September, 1995) pp. 216-218
LAW IN A DIGITAL WORLD by M. Ethan Katsh. New York: Oxford
University Press, 1995. 294 pp. Cloth $35.00
Reviewed by Thomas G. Walker, Department of Political Science,
Emory University.
During a 1983 interview session Court of Appeals Judge Robert
Vance commented on how the development of computers and data
retrieval systems had changed his life as a judge. It made his
job much easier, he claimed, because he no longer had to worry
about his own consistency on particular legal questions. When
perplexed he could simply order his law clerks to tap into LEXIS
to find out what his position was. Although Judge Vance, who
tragically died at the hands of a mail bomber in 1989, offered
the comment in jest, his underlying observation was a serious
one. Computers have changed the substance and practice of law,
and those changes are only in their infancy. This also is the
theme of Ethan Katsh's new book, LAW IN A DIGITAL WORLD, an
interesting look at the dramatic changes in store for the legal
community.
Katsh's thesis is that electronic digital systems are displacing
the print media. The ramifications of this transformation have
consequences similar in significance to the changes that occurred
following Gutenberg's development of the moveable type printing
press. Reliance on words fixed on paper is giving way to an
environment in which words, images, and sounds are located in
cyberspace. As a consequence the study and practice of law are
undergoing fundamental change.
One characteristic of an established profession is its control of
a specialized language and a particular body of knowledge. This
control largely excludes the lay person and gives the members of
the profession powerful monopoly. Manifestations of this can be
found on any university campus. Central to the activities of the
university is a comprehensive general library to which students
and professors from all schools have access. At separate
locations, however, are the professional schools with their own
libraries, access to which often is limited for outsiders. To
hold all materials pertinent to law or medicine, for example, in
a separate place reflects the closed nature of the professions
and helps preserve their preferred position. One must go to a
particular, reserved site to consult legal works that are written
using a specialized professional vocabulary. As long as there is
reliance on the printed word this system is maintained.
The transformation to an electronic world, however, changes the
position of the professions markedly. No longer do spatial
considerations protect the monopoly enjoyed by their members, nor
are lay persons required to journey to the repository of
professional materials. As increasing numbers of legal volumes
become available on the Internet or in other electronic
environments anyone with appropriate equipment can obtain
immediate access to the law. Furthermore, as the law finds it
necessary to conform to the language of a cyberspace world, the
profession not only gives up some of its control of specialized
knowledge, but also its control over a specialized language.
Katsh also contends that the law's reliance on words is being
modified by the electronic age. Technology now allows us to
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use graphics hand-in-hand with text to convey knowledge. This
capability provides ways to improve upon the communication of
legal information. As an example Katsh asks his readers to
consider the opening words of the Supreme Court in BOARD OF
EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMET, the
1994 Establishment Clause decision concerning the creation of a
special school district:
SOUTER, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II-B, II-C, and
III, in which BLACKMUN, STEVENS, O'CONNOR, and GINSBURG, JJ.,
joined, and an opinion with respect to Parts II (introduction)
and II-A, in which BLACKMUN, STEVENS, and GINSBURG, JJ., joined.
BLACKMUN. J., filed a concurring opinion. STEVENS, J., filed a
concurring opinion, in which BLACKMUN and GINSBURG, JJ., joined.
O'CONNOR, J., filed an opinion concurring in part and concurring
in the judgment. KENNEDY, J., filed an opinion concurring in the
judgment. SCALIA, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and THOMAS, J., joined. What does this mean?
One either has to read the passage several times, or resort to
paper and pencil to sketch out the relationships. Katsh argues
that such information might be conveyed more effectively using
new graphic techniques available in a digital environment.
Similar arguments can be made for communicating other forms of
relationship information so commonly used in the law. In short,
the new technology will introduce methods of legal communication
that leave behind the limitations inherent in a system placing
exclusive reliance on text.
Much of the Katsh book deals with changes occurring in specific
areas of the law (contracts, copyright, and privacy), as well as
with how the transformation to a digital environment will alter
the work of lawyers and judges. For example, increasingly
sophisticated interactive technology may replace much of the work
currently done by lawyers. Lay persons may receive standardized
legal services (wills, no contest divorces, sales contracts,
etc.) without ever consulting an attorney. As a consequence, the
need for "paperwork" lawyers whose practice is
dependent upon having the specialized knowledge necessary for
correctly processing appropriate legal forms may decrease.
Outside of core legal work, lawyers may give way to clerks and
paraprofessionals.
Developing digital technology will also transform the way in
which attorneys negotiate and appellate judges confer. Large
files of paper documents as the by-product of such interactions
will be a thing of the past as electronic communication displaces
the traditional forms. This, of course, is bad news for those
scholars who spend long hours in archives searching through
private papers of judges for nuggets of information that provide
insight into the decision-making process. Private memoranda that
previously circulated drafts of opinions or other arguments soon
will give way to electronic communications
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that disappear forever with a touch of the delete key.
Is the legal world Katsh envisions likely to come about? Or, can
we put his claims alongside those who prematurely have predicted
for the past several decades that we are on the verge of a
cashless, checkless economy? And, if Katsh is correct, how long
will the transformation take? These are questions without easy
answers. Katsh admits that the status quo will not be displaced
with ease or speed. We have a near addiction to paper- based
information -- and not without good reason. Paper presents a
clear image and holds a current advantage in ease of reading.
Paper also is associated with permanence and authority. For
example, once an agreement has been reduced to writing, the
resulting document is evidence of a mutual understanding that is
not easily changed. The law particularly looks to written
statutes and published court opinions for guidance and authority.
In the electronic world, information is neither fixed nor
permanent. It can be instantaneously transmitted and altered at
any time with easy combinations of keystrokes. Traditional legal
practice is uncomfortable with such speed and fluidity.
In spite of the persistence of a paper-based legal world, Katsh
contends that change is inevitable. The law will be unable to
withstand the transformations occurring throughout society. With
the development of LEXIS and WESTLAW, it already has entered an
era not totally reliant on print. In addition, the advantages of
an electronic world will convince forward looking legal
practitioners that the transformation is not only inevitable but
also advantageous.
Katsh's book provides an intriguing look at the legal world in a
period of transformation. While its subject matter may appear dry
and technical (and sometimes it is!), the book is written in a
manner that makes the material palatable -- and even enjoyable.
Katsh refers often to the works of philosophers, scientists and
social commentators and weaves this material into his discussion
of the more technical aspects of his analysis. A few of his
comments on newer technologies appear on the verge of becoming
outdated, perhaps supplying a measure of proof for his argument
regarding the inevitable limitations of the paper-based exchange
of information in a society of rapid change. The author is at his
best, however, when he looks to the future and discusses his
vision of what lies ahead for the world of law.
Copyright 1995