You may freely redistribute this column; please retain author and publication attribution. If you are not currently receiving these columns directly and would like to do so, please send me an e-mail at Postd@erols.com and let me know -- D. Post
"Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame."
Alfred, Lord Tennyson, Aylmer's Field (1793)
With the single exception of word processing, no technological development of the last few decades has had greater effect on the practice of law than online searching. We sometimes forget how rapid and profound the changes wrought by these seemingly mundane capabilities have been.
Ten years ago, when I began practicing law, the hot issue in legal technology circles was whether online research could, or should, supplant traditional searching methods. In law school in the early 1980s, we were not permitted to use online searching for our legal research projects, for fear that somehow this would interfere with our ability to learn "real" legal research. The trade journals were filled with comparisons of the cost-effectiveness of traditional and online search methods, and there was a widespread feeling that the material in the Lexis or Westlaw online databases somehow wasn't as authoritative as the cases printed in hard copy and stored on the library shelves.
Today these questions have a truly antiquated ring, which is probably as good a measure as any of just how far the technology has taken us in a breathtakingly short period of time. There may be lawyers who rely on traditional hard-copy tools for finding the law relevant to any particular question, but there are surely fewer and fewer of them every day. But these systems have not merely altered the shape of the lawyer's toolkit; because information retrieval is at the very core of what the law is, the rapid expansion of fundamentally new ways of finding legal information may be changing the very substance of the law, and perhaps even the notion of "the Law."
Tennyson was correct; in 1793, law was indeed a "lawless science" because the information that constituted "the law" was, in his day, largely inaccessible. In a decentralized common-law system, which relies upon precedent for its decisions, if information about what the decision-makers have done in particular cases is not available to others, it doesn't really exist -- it's the tree that falls in the forest when no one is around to see it. And that was precisely the situation prior to the advent of a system for distributing reported decisions -- an institution that really takes shape, in this country, during the middle and latter parts of the 19th century with the development of the West National Reporter System, the first comprehensive collection in standardized format of all of the decisions of all of the nation's courts. As that database grew (and it grew rapidly during the late 1800s), no one could possibly keep track of the information that was growing there; some way to locate information within the database was required, a need soon filled, of course, by the West Digest system.
When I describe the West Digest System to some of my current students, I am met with puzzled and bemused looks. For those of you who, like them, have never had the exquisite pleasure of doing legal research with the Digests, a brief description is in order. The Digests were nothing less than a comprehensive index of every proposition of law in every reported case. The original classification scheme grew from what West called the seven "grand divisions" -- persons, property, contracts, torts, crimes, remedies, and government -- and encompassed over four hundred main topics ("criminal law," "copyright law," and the like) and thousands of subdivisions (often layered three or four layers deep). Each case from the National Reporter System was divided into individual propositions of law (the "Headnotes), and each proposition of law in every case decided by each tribunal was then assigned to one, or more, of these subdivisions. The Digests then collected all propositions from all cases under each of the subdivisions, so that, in theory, one could find what every court had ever said about the subject at hand..
The development of the West Digests was largely the work of a small number of men (Benjamin Abbott, John Hudson, G. Fred Williams, and John Mallory) prior to the turn of the century, and it was surely a grand scheme, as grand in its way as the Linnaean system for classifying the animal and plant kingdoms (and the result of much the same intellectual impulse). Without this remarkable information retrieval system, the Reporter system itself -- the comprehensive database of cases -- would have been almost unusable, and its influence on the structure of the law was profound.
But it was far more than just a convenient way to find the law; in many ways it was the law. West referred to it, and many of us thought of it, as a kind of map of the landscape of the reported decisions, but if it was a map it was a very curious map indeed, for unlike most maps it actually helped to shape the very features of the landscape that it was supposedly mapping. An ordinary map can be "wrong" -- it can incorrectly describe the features of this physical landscape by putting, say, something in the east quadrant when it is "really" in the west. But the West Digest had a kind of self-perpetuating quality; if it put something in the east it pretty much stayed there forever. As Robert Berring, Professor of Law and Law Librarian at Boalt Hall, has written:
It is commonplace among information scientist that an unindexed or misindexed
of information is forever altered or lost . . . [I]f cases are only available through the
West Digest system, then only that intellectual structure for understanding the
interrelationships of law can prevail. Like it or not, practitioners and researchers
internalized he West structure, and it became the skeleton upon which the rest of the
system was built.
To illustrate, in 1986 I clerked for then-Judge Ruth Bader Ginsburg on the DC Circuit Court of Appeals, and worked with her on a case, Martin v. DC Metropolitan Police Department, 812 F.2d 1425, over which we struggled mightily. The case involved a "Bivens claim" of unconstitutional conduct lodged against a member of the DC police force, and raised difficult questions about the way that courts would evaluate such claims on the pleadings.
About a year after the decision was handed down, I had occasion to look for the decision in the Digests, and found, to my surprise, that the key propositions of law for which the case stood did not concern "Civil Rights/Federal Remedies," or "Constitutional Law/Remedies for Injuries," or "Constitutional Law/Personal, Civil, and Political Rights/Personal Liberty and Security" -- all perfectly plausible categories for this case -- but rather "United States/Government in General/Liability of Officers and Agents." If that was the only way you could find the case, then others would find it (and cite to it) only if they were looking for the law of the liability of US government officers and agents, not civil rights law or constitutional law, and it would over time come to mean something about law of the liability of US government officers and agents, not civil rights law or constitutional law.
The advent of online searching has, of course, changed all of that. Now, of course, you enter "Bivens claim" and "summary judgement" and "immunity" and "government official" -- or, even more powerfully, you enter a simple question: "What standards of specificity should a court apply to a Bivens claim when evaluating a motion for summary judgment based on absolute or qualified immunity" -- and you'll find Martin, even if you have no idea what category your question falls into. No longer, in short, does an indexer stand between you and the proposition of law for which you may be searching. No longer does any single entity -- West Publishing or anyone else -- decide what is or is not "constitutional law" or "civil rights law" or "governmental immunity" law. Where once the legions of indexers compiling the West digests determined the meaning of individual cases, now we have literally an infinite number of ways to find any particular case and make of it what we will.
This is likely to have a profound impact on the very existence of legal categories like "constitutional law" or "civil rights law" or "law of government official immunity." We have in this country, for instance, no coherent body of "information law," and we are only now beginning to see people describe themselves as "information lawyers." We have, to be sure, courses at law schools on information law, but such courses will usually cover a little bit of "privacy law," some "intellectual property law," some "communications law," and the like. Information law is seen, in other words, as a kind of cross-disciplinary study, cutting across the "ordinary" categories within which legal information is organized.
But where did those categories come from? It is something of a stretch, I admit, to claim that we don't have a coherent body of information law because Messrs. Abbott, Hudson, Williams, and Mallory did not include such a category in their grand indexing scheme -- but it is, I would suggest, not too much of a stretch. There was, in effect, no place within the Digest structure for information law to live and grow; while it was not impossible to bring together legal propositions from these disparate categories to see if common principles bound them together, it was awfully difficult. But those categories are crumbling, because they are in large part a product of an information retrieval system whose day is past.
Finally, consider the odd place of "facts" in the law. It is the deep dark secret of the law: facts matter, and matter profoundly. My students don't believe it -- and resist believing it with all the power in their being. But we know that our clients do not come to us with "legal problems," they come to us with facts, and it is our job as lawyers to determine how the legal system will deal with those facts. Our clients do not come to us and say " under the Lanham Act, what is the role of geographical proximity in determining the nature of the ëconsumer confusion' that must be demonstrated to state a claim?" They ask: "Some guy in Chicago is marketing something under the same name as my product; is there anything we can do about that?"
Accordingly, we all now that the most useful piece of information we can find is information on how the legal system has dealt with analogous constellations of facts in the past. That's the golden nugget, the case "on all fours" with the facts of our client's current situation from which we can make reasonably reliable predictions about what a court will do when faced with those facts. But, of course, that's precisely the kind of information that was virtually inaccessible under previously-existing retrieval systems. The indexers didn't index facts, they indexed propositions of law. Facts were, therefore, far more difficult to find than propositions of law, and finding the case on all fours was an arduous and difficult task, not because the law of nature dictated that it be so but because we had no retrieval tools that would facilitate that task.
But facts and propositions or law are now equally accessible, because there is no indexer to decide what is a "fact" and what is a "proposition of law." The law is likely to be increasingly organized along factual lines -- replacing our category of, say, "intellectual property law" with, perhaps, "music law," or "Web page law," or the like. Factual information is likely to assume new prominence in the law, because the new technologies allow such information to be more easily retrieved and more easily packaged for the judicial decision-makers.
Surely the lawyer of 2000 or 2010 will be amazed to learn that when the Supreme Court issued its opinion in the music parody case of Campbell v. Acuff-Rose, there was no sound file attached to the written opinion that would allow readers to hear the two songs the Court was talking about. Or that the decision upholding the trademarkability of color -- Qualitex v. xxx -- was issued in black and white! The dispositive factual information in these cases was completely obscured, simply as a function of the inability of our technology to handle such information. As that changes -- and it will look as peculiar to lawyers in 10 years as the West Digests do to my students today -- the structure of the law that we have come to know (if not love) is likely to be fundamentally re-shaped.
Contact David Post by e-mail at Counsel Connect: firstname.lastname@example.org.
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