Information, Law, the Future, and Other Stuff

What lies on the other side of the link below is a maundering ponder on information and its place in the scheme of things, now that technology has wedded itself to the right side of that previously innocent word, and on how legal information differs from the other kinds, if at all. It’s a subject that fascinates me but one about which I know very little, and so this essay, if it can be said to rise that high, is my way of starting a thought process aimed at letting me learn.

Let us begin from far away. We are living today in a culture of information. I use the word “culture” in its anthropological sense; the information culture… stimulates calculations but consistently discourages reflection. It substitutes information (and misinformation) for knowledge or wisdom. This is alarming, yet it’s a culture that sooner or later will spin out of control; it will not endure.

John Berger, from “A Jerome of Photography: The Camera As an Instrument of Knowing,” Harper’s, December 2005, p. 87

I also begin from rather far away — at Mr Berger’s quoted text, in fact — though unlike him I may never get there from here, a fate suited to a blog post, perhaps. The “there” there that I’m aiming at is legal research, not surprisingly. For this is in Slaw and Slaw is a weblog, a nonce thing, a thing if not of quite the moment then of the hour, and above all a thing of and about information and thus within the shadow of this scorn.

But Slaw knows it is only a weblog, and is therefore not to be despised, surely. It has its uses. The information it brokers is our information — legal information — which might be different from the stuff of Berger’s nightmare. Or maybe not. This is what I want to walk around in this piece, questions such as: whether we, too, should pick up information with long tongs the way the author of the quote does; whether the information-knowledge distinction is right, useful, productive — whether the one is mere and the other more; whether the culture, or our cul-de-sac of it at least, really will go pop.

Is information different from knowledge? Sure: “5” on its lonesome is information, perhaps; whereas “5 as the sum of 4 and 1” is knowledge. But that’s not very interesting — one is tempted to say “informative.” But Berger really means that there is a tendency among many people nowadays (his anthropological “culture”) to deal in lonesome “5”s: you and I meet and I tell you that the population of China is such-and-so; you utter a portion of the TV viewing schedule for the evening; and then we go on our ways, somehow gratified. Or perhaps, to make things even more “alarming,” I don’t even involve you, but seek out those bits of information for myself for no apparent reason.

But this sort of behaviour isn’t anything new in the world, nor particularly alarming, it seems to me. Neither is a piling up of facts and factoids into heaps meant to impress, or make money, or satisfy an OCD. (I myself am much more concerned with the parallel culture of consumption — but that’s another store.) That’s always been human nature.

Too, there never is the sort of utterly de-racinated information that Berger scares himself with. After all, “information” is that which is put into form. And without some form we can’t even “see” anything. True, some forms are more valued than other by some people. I’m almost entirely outside the sports context in our society, so for me it’s like the comedy routine where the radio announcer says, “And now for the sports scores: 4 to 3, 7 to 2, 24 to 15…” So I’d suggest that stuff disparaged as mere “information” is data that relates to a context about which we are ignorant or that we don’t value. There’s a lot of that sort of information going around, to be sure, and one complaint may be that it’s increasingly hard to shut off the tap that gushes “nonsense.” But there’s never been a time in human history when someone who’s outside an idea hasn’t raised the alarm about the unthinking “others” enjoying it from the inside. Everything looks silly from without. That’s what irony is about.

But it can be irritating to be reminded that there’s something going on that you don’t know sweet fanny adams about and might need to learn despite your already overcrowded schedule. Why, I’ve actually been at meetings of learned people who have bothered to sneer at the mention of “blogs.” (Speaking of sneering, let me relate a sneer of my own. Back when I was younger, a hundred years ago, a student writing a paper for me asked whether it would be okay if she used something she called a “word processor” to write it. Ho, ho, I said, and grandly agreed she might. Later that same day, I cracked wise about this to every colleague I could find: goodness me, I sneered, if we now have word processors, can “language spreaders” be far off. Yes… well. As the joke goes — Yesterday I couldn’t spell engineer and now I are one.)

The information that we trade in Slaw, if read by a non-lawyer, say, might be deeply uninteresting. But it emanates from (and presumably goes to) those learned in the law or something better, and therefore to people who have no trouble slotting it into the waiting gaps in their knowledge schemes. Few sports scores here. But there’s more, when it comes to legal information, it seems to me. Law is not only a knowledge scheme but also in significant measure a wisdom practice, based as it is in argument from yesterday’s authority and precedent.

Wisdom’s a funny thing. I worry far more about wisdom that ever I do about information, even in torrents. Wisdom knows, and thus learns only with difficulty. Wisdom too often does what Berger attributes to the information culture: “stimulates calculations but consistently discourages reflection.” It also makes legal researchers go a little crazy worrying about “current awareness,” a curious term, perhaps, for precedent.

But more to the point here, a wisdom practice will be very demanding about the kind of information it tolerates. Like some genome with a very particular squiggly edge, it will accept only those floating bytes that have an edge with the same precise contours. Easy, then, to disregard most of what’s happening now with information technology, of which weblogs are only a small and by-now passé part. RSS? As Tom Mighell of Inter-Alia said recently, “some people just aren’t ready to drink the Kool-Aid.” Video and CD-ROMs are still in use. And a book is firmly the “Best Organization Of Knowledge.” No mob of early adopters here. I don’t suggest this is wrong or bad in any way; simply that law and information technology might be somewhat incompatible bed fellows. Not enough mutated receptors on the fringes of law to accommodate odd or novel information. Need some sort of legal SSRI, perhaps.

Now I switch sides and join Berger in some measure. I think that legal information is growing at a pace that might just cause the current set-up to go bang. This, too, is a function of the relatively rigid or narrow epistemology that law has; when signals can only be received in a narrow band of frequencies (to switch metaphors as well) an increase in the rate of signals leads ultimately to noise. The factors contributing to the growth of legal information are too well known to explore here in any depth. Once upon a time, when I was disparaging word processors, you read your ORs and were blissfully unmindful of the fact that the vast bulk of judgments were excluded by editorial judgment. Now, to quote from the Lion King, “every grunt, roar, and snort” makes the morning report in some database or other, lying flat in the same plane as Solomon’s considered views; we now care more assiduously about what goes on in Manitoba, Michigan and Malaysia; SECs now cause corporate data to fly thither and yon like thistledown where before they emitted a few fusty club newsletters. Oh, and governments seem bent on growing their legislation geometrically. Etc.

How much coping can one person do? Or a thousand in some mega-firm? Or all the “off shore” legal researchers in India? Unless law figures out how to forget, it can’t continue forever. That’d be my view. Those that are condemned to repeat history can’t learn from it. It will take a while, of course, for things to become a shambles; in addition to the coping strategies just mentioned, there’s knowledge management, of course, and ever better Googlish algorithms. But just as certainly as technology produced the “paperless office” it’ll multiply the “knowledges” managed or found beyond the capacity of most cerebral cortices to handle.

Lest you think me too like your mother, who might, when things became rumbustious, have declared, “This will only end in tears,” I’ll turn to the wildly upbeat Ray KurzweilWhose very name in German is an old-fashioned word for “amusement” and (literally: short – while) the opposite of “boredom” — langweile, or long – while., who is very very far away from John Berger, and, I’m sure, unlike most anyone’s mother. He’s at MIT.By the way, check out MIT’s web site; they have a different light-hearted front page every day; when you’re good, you can be cool, I guess. now (after getting rich and richer in business) and some crazy smart guy with, well, crazy and maybe smart ideas about AI. He’s just published The Singularity Is Near: When Humans Transcend Biology, which I’ve not read yet. But according to the reviews, Kurzweil believes that the pace of technological change is increasing at an exponential rate, that this is an “overriding impersonal law, and that it’s is good. The Globe and Mail reviewer:

This law is said to lead to an event called the Singularity, a point at which ”information technologies will encompass all human knowledge and proficiency, ultimately including the pattern recognition powers, problem solving skills, and emotional and moral intelligence of the brain itself.“ Once technology overtakes people, ”there will be no distinction . . . between human and machine nor between physical and virtual reality.“ This profound change will be underwritten by radical innovations in nanotechnology, robotics and biotechnology.

Kurzweil believes that then we, whatever we have by then become, will be able to solve all of the world’s serious problems. Oh, and this will happen by 2045. Kind of makes difficulty keeping up with the New Brunswick Court of Appeal pale into insignificance, no? At the end of the review, the writer reminds us of what that great sage and catcher, Yogi Berra, said: “Prediction is difficult, especially of the future.” To which I’d only add: and so’s research, especially of the past.

Comments

  1. Thank you for this thoughtful discussion, Simon. Certainly blogging itself can go either way–posting links to myriad websites without context is just “facts”. A thoughtful discussion such as yours here could be categorized in the “knowledge” and “wisdom” category. I like to think I am able to pull disparate facts or ideas together, find connections, and build some sort of synergy with them. Time will tell if this passes off as “wisdom”.

    By the way, I wonder how it is that you know my mother? She’s been predicting the doom of humanity through the use of computers for years.

  2. Simon – this deserves a response I won’t be able to get to until the weekend, but the technology contains the germs of ideas for developing tools to manage the information.
    The analysis would start with Martin Shapiro’s communications theory based approach to precedent (I remember a 1966 article but the only reference I have is to Shapiro,
    Toward a Theory of Stare Decisis, 1 J. LEGAL STUD. 125 (1972)), build in what Dick Posner is hinting at in the use of citations pattern analysis to rank judgments (and of course judges – see http://www.law.uchicago.edu/faculty/posner-r/resources/Econ_Analysis_Citations.pdf) and then focus in on the unique characteristics of the Canadian market for legal information. The role of the academy is important too – see obviously Weber’s Chapter VII in On Law in Economy and Society and some interesting work by Bill Twining, who should be invited to express his thoughts: see Social Science and Diffusion of Law, by William Twining, in Journal of Law and Society, Volume 32 Issue 2 Page 203 – June 2005 (which I can’t read here, and his Sixth Tilburg Lecture on “Generalizing about law: the case of legal transplants” at http://www.ucl.ac.uk/laws/jurisprudence/docs/twi_til_4.pdf, and his A Post-Westphalian Conception Of Law at http://www.ucl.ac.uk/laws/jurisprudence/docs/twi_til_1b.pdf
    There has been some interesting work done on Precedential Cascades at http://www-rcf.usc.edu/~usclrev/pdf/073102.pdf.
    No-one seems to have done a sociology of legal knowledge in the way that has been done for scientific literature, even though law is quite interesting in the extent to which we consciously do not discard the past.
    I’m not aware of any Canadian scholar (with the possible exception of Ejan Mackaay at UofM) who’s working on this stuff, but then I’m just a practising lawyer, and the academics on this blog community can put me right.