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