Electronically Manufactured Law – What’s Changed and Why Does It Matter?

Here is a link to a thoughtful article in the Harvard Journal of Law & Technology by Hofstra Professor Katrina Fischer Kuh entitled Electronically Manufactured Law – Why the shift to electronic research merits attention.

It seeks to understand how present and future changes in the communication of law, including electronic legal research, influence the legal profession and legal practice. It explores how the shift to electronic research is likely shaping the law in little-noticed, but nonetheless significant, ways.

An earlier release of the article summarizes its themes:

We increasingly communicate and experience law through an electronic medium. Existing scholarship suggests that prior changes in the communication of law – from oral to scribal, scribal to moveable type, the widespread publication of cases – influenced the development of the law, including by contributing to the rise of basic concepts such as precedent. One element of the present shift in the communication of law is that the process by which we find the law has been transformed. Specifically, legal case research, once conducted exclusively through the use of print-based resources (reporter volumes, case digests, treatises), is now conducted primarily through searches of electronic legal databases. This Article employs principles of cognitive psychology to generate empirical predictions about how the shift from a print-based to an electronic research process changes researcher behavior and research outcomes. The Article then assesses the broader impacts of these changes with respect to the content and practice of law.

Specifically, the Article identifies three changes to the research process that are salient for predicting the broader impacts of the shift from print-based to electronic research: (1) Electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) Electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) Electronic researchers are exposed to more and different case texts than print researchers. The Article then considers these basic changes in light of principles of cognitive psychology, including the influence of labeling, categorization, and confirmatory bias on understanding, and offers empirical predictions about the impacts of the shift from print-based to electronic research.

First, the Article predicts that the shift to electronic research gives rise to “diversity in framing.” There will be greater divergence between researchers with regard to the theories and principles identified as potentially applicable to a set of facts and this will lead to greater disputes about what is in dispute. Second, the Article predicts that the shift to electronic research leads to more “tilting at windmills.” Researchers will have greater difficulty making accurate judgments about whether an argument has merit and will thus advance marginal theories and cases with greater frequency.

Each of these predicted changes gives rise to broader impacts on the law. In an adversarial system, judicial options for case resolution are largely defined – and constrained – by the theories proffered by counsel. Diversity in framing would expand judicial authority by providing judges with a wider variety of options for the resolution of disputes. This underlines the way in which counsel serve as gatekeepers by exercising independent judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require critical reexamination of the existing limits placed on lawyers in their role as gatekeepers – such as Federal Rule of Civil Procedure 11 – to prevent a waste of judicial and client resources. A follow-up article will test the “diversity in framing” and “tilting at windmills” predictions.

The headings in the piece give some of its flavour:

ELECTRONICALLY MANUFACTURED LAW
WHY THE SHIFT TO ELECTRONIC RESEARCH MERITS ATTENTION.
Medium Theory and Legal Historical Scholarship.
Legal Realism
Unpublished Decisions, Non-Citation Rules, and Federal Rule of Appellate Procedure 32.1
Existing Legal Scholarship and Empirical Data
A DETAILED COMPARISON OF PRINT AND ELECTRONIC RESEARCH PROCESSES —IDENTIFYING SALIENT DIFFERENCES
Electronic Researchers Are Not Guided by Key System Information to the Same Extent as Print Researchers with Respect to Identifying Relevant Theories,
Principles, and Cases
Electronic Researchers Do Not Encounter and Interpret Individual Cases Through the Lens of Key System Information to the Same Extent as Print Researchers
Electronic Researchers Are Exposed to More — and Different — Case Texts than Print Researchers
COGNITIVE PSYCHOLOGY-DERIVED PREDICTIONS ABOUT THE CONSEQUENCES OF A CHANGED RESEARCH PROCESS: DIVERSITY IN FRAMING AND TILTING AT WINDMILLS
Principles and Theories of Cognitive Psychology
Influence of Labeling
Influence of Categories
Confirmatory Bias and Selective Information Processing
Application of Cognitive Psychology Principles to Legal Research
Diversity in Framing.
Tilting at Windmills
THE BROADER IMPACTS OF DIVERSITY IN FRAMING AND TILTING AT WINDMILLS
Diversity in Framing
Tilting at Windmills

It joins a distinguished body of earlier articles exploring what is happening to legal research, led by Bob Berring:

Steven M. Barkan, Deconstructing Legal Research: A Law Librarian’s Commentary on Critical Legal Studies, 79 LAW LIBR. J. 617 (1987);
Robert C. Berring, Chaos, Cyberspace and Tradition: Legal Information Transmogrified, 12 BERKELEY TECH. L. J. 189 (1997);
Robert C. Berring, Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information, 69 WASH. L. REV. 9 (1994)
Robert C. Berring, Legal Information and the Search for Cognitive Authority, 88 CAL. L. REV. 1673 (2000)
Robert C. Berring, On Not Throwing Out the Baby: Planning the Future of Legal Information, 83 CAL. L. REV. 615 (1995)
Richard Delgado & Jean Stefancic, Why Do We Ask the Same Questions? The Triple Helix Dilemma Revisited, 99 LAW LIBR. J. 307, 310 (2007)
Richard Delgado & Jean Stefancic, Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma, 42 STAN. L. REV. 207 (1989)
Jill Anne Farmer, A Poststructuralist Analysis of the Legal Research Process, 85 LAW LIBR. J. 391 (1993);
Paul Hellyer, Assessing the Influence of Computer-Assisted Legal Research: A Study of California Supreme Court Opinions, 97 LAW LIBR. J. 285 (2005);
Ethan Katsh, Digital Lawyers: Orienting the Legal Profession to Cyberspace, 55 U. PITT. L. REV. 1141 (1994);
Molly Warner Lien, Technocentrism and the Soul of the Common Law Lawyer, 48 AM. U. L. REV. 85 (1998);
Peter C. Schanck, Taking Up Barkan’s Challenge: Looking at the Judicial Process and Legal Research, 82 LAW. LIBR. J. 1 (1990);
Jean Stefancic & Richard Delgado, Outsider Jurisprudence and the Electronic Revolution: Will Technology Help or Hinder the Cause of Law Reform?, 52 OHIO ST. L.J. 847 (1991);
Elizabeth M. McKenzie & Susan Vaughn, PCs and CALR: Changing the Way Lawyers Think (Suffolk University Law Sch. Legal Studies Research Paper Series, Working Paper No. 07-31, 2007);
M. ETHAN KATSH, LAW IN A DIGITAL WORLD (1995)
Carol M. Bast & Ransford C. Pyle, Legal Research in the Computer Age: A Paradigm Shift?, 93 LAW LIBR. J. 285, 287 (2001)
F. Allan Hanson, From Key Numbers to Keywords: How Automation Has Transformed the Law, 94 LAW LIBR. J. 563, 589–92 (2002)
Barbara Bintliff, From Creativity to Computerese: Thinking Like a Lawyer in the Computer Age, 88 LAW LIBR. J. 338, 344 (1996)
Lee F. Peoples, The Death of the Digest and the Pitfalls of Electronic Research: What Is the Modern Legal Researcher To Do?, 97 LAW LIBR. J. 661, 674–75 (2005).
Robert C. Berring, Legal Research and the World of Thinkable Thoughts, 2 J. APP. PRAC. & PROCESS 309, 313 (2000)
M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW 17–48 (1988)
Robert Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 CAL. L. REV. 15 (1987)