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In this monthly column, law professors comment on the many academic opportunities and challenges presented by Web technology.
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What Happens When a Glacier Starts to Melt?
I began my explorations into the interaction between law and computers over fifteen years ago. Part of my motivation was a sense that we were about to witness a “Holmesian moment.” The kind of moment or adventure I had in mind had to do with Holmes’ famous comment that “the life of the law is not logic, it is experience.” Fifteen years ago, before I had email, before I had heard of the Internet, and before the World Wide Web existed, I started to believe that our experiences with information were about to change in a fundamental way. Since much of law and legal practice consists of an experience with information, with communicating, evaluating, processing, creating, storing, and accessing it, it seemed to me reasonable to argue that “the life of the law” would change as well.
Of course, there was no way to prove that the law would change as a result of the emergence of powerful new information technologies. And even if law were to change, I recognized that rather than taking a moment, change would only occur over some extended time period. Even if the new experiences were radically different from the old experiences, I knew that law was a sufficiently tradition-bound institution so that what we were likely to witness would be incremental change that would appear revolutionary only at some future date when we might think to ourselves how differently we acted and believed “back then.”
If one thinks back to what the world of law and computers was fifteen years ago, the primary law-related application concerned legal research (Lexis and Westlaw). Some lawyers may have been experimenting with word processors (the profession has actually been notoriously slow in giving up secretaries) and even law students did not have the kind of access to Lexis and Westlaw that they have today (access at that time occurred via dedicated terminals in the library). Thus, it was abundantly clear that it was far too early to expect to be able to document change in processes, practices, and thinking about law.
I was reluctant, however, to simply take a few years off and then return to this inquiry so instead of looking at the then present, I focused my attention on the past. Rather than looking at what was happening in the mid-1980s, I started looking back in time, to the 1480s and 1580s. It seemed plausible to me that if one could find evidence that the shift from writing to print brought about some fundamental changes, then one could plausibly suggest that the emergence of electronic media might have a similarly profound effect.
My sense that the emergence of printing might help us understand the potential influence of electronic media was greatly assisted by an impressive two-volume work called The Printing Press as an Agent of Change that had been published in 1980 by historian Elizabeth Eisenstein. Eisenstein argued that the shift from writing to print brought about a major cultural change and she focused her energies on documenting the nature of fundamental changes that occurred to religious, political, and scientific institutions and practices in the century following Gutenberg.
I was sorry that Eisenstein had not attempted to look at change in the law, although I am not sure what would have happened to my own work if she had. What she did show, and what was relevant to someone interested in law and printing, was that printing had a range of important qualities. Printing was an “agent of change” not merely because of its most obvious quality, that it radically expanded the quantity of available information, but because of other more subtle qualities.
Briefly, printing differed from writing by creating a standardized, linear, uniform, and fixed document. After Gutenberg, one could refer someone to line 3 on page 145 of a book and be confident of what words that person would be looking at. No longer would different copies have different content, since errors would no longer multiply when copies were made. There would be more willingness to trust the words on paper as representing what the author actually wrote. To remove doubt about authenticity was to add great value to what appeared in print. We take it for granted that “seeing is believing” when information is affixed to paper and has the name of a recognized publisher on the spine. We are famliar with a process of change that results when one is able to access information in print, rely on it, work with it, comment on it and respond to it. In the legal universe, as documents became more authoritative, a process that relied on such documents, e.g. precedent, became more mainstream and a profession oriented around the growing body of legal information began to grow.
Although printing brought about many changes in the law, what intrigued me the most were a number of related thoughts: that the movement from writing to print was a move from a more fluid informational environment to a more fixed informational environment, that it was a move from an environment where every copy of every document looked different to an environment in which every copy looked the same, that it was a move from an environment in which images were often mixed in with text to an environment in which ordered lines of text with measured margins were the norm, and that it was a move from an environment where the written word lacked authority because it lacked trust and authenticity to an environment in which the word affixed to the printed page had supreme status. Clearly, it seemed to me, an institution such as the law, in which the storage, evaluation, communication, and control of information was central, would be affected.
In a similar vein, what has been intriguing to me about electronic information technologies was the thought that whatever wonders and benefits are presented by the electronic media, uniformity, standardization, linearity, fixed images, and inherently trustworthy and authoritative displays were unlikely to be the norm. As a result, it appeared reasonable to believe that institutions that are currently oriented around text and the authority that derives from a fixed, uniform and standardized mode of communication, would become as vulnerable, for example, as the Church was in the period following printing, when the new medium was first welcomed as a “divine gift” and was then used to advantage by Martin Luther to undermine it.
At what point should we expect to see some cracks in the edifice and, perhaps, the emergence and acceptance of a more fluid, individualistic, contextual process of ordering behavior and resolving disputes? As I have been observing the legal landscape over the last decade, it has been clear to me that change has been occurring much more slowly than I thought it would. The new technologies have become pervasive and our activities increasingly involve reliance upon them. We have also been challenged to adapt various legal doctrines and assess whether they are adaptable. Yet, if the logic of the law is indeed a product of experience, rather than vice versa, a new logic does not appear to have arrived. We clearly have new tools but however we are using these tools, the core of the enterprise does not seem as vulnerable as I thought it might be.
What one could easily conclude from all this about the impact of technology on law is that my analysis and hypotheses were wrong from the start. It would not be unreasonable to think that law continues to embody values associated with uniformity, linearity, and standardization, and continues to use the categories that have become familiar to us, because these are the very values and constructs we want to be the building blocks of our legal culture. Perhaps. Indeed, in another decade or two, if change still seems far off, I may find such a point of view persuasive. At the moment, however, it appears to me to be still possible to think, simply, that the law is a glacier that is now only melting on the outside, that law is a bigger glacier than some other cultural institutions, that its core is frozen deeply inside, and that even with the rapid spread of electronic technologies, it should not be surprising that a shift in values is taking more than a decade to occur. If it is true, as Iredell Jenkins once wrote, that “law is very like an iceberg; only one-tenth of its substance appears above the social surface in the explicit form of documents, institutions and professions, while the nine-tenths of its substance that supports the visible fragment leads a sub-aquatic existence, living in the habits, attitudes, emotions and aspirations of men,” then change will come but it will come slower than it comes to other institutions that are more market driven and entrepreneurial.
While printing gave me an opportunity to look backwards, the Web has encouraged me to look sideways. If law is slow to change, because of its traditions, its concern with the past, its link to territorial entities, and its high professional barriers of entry, what has seemed to me to be worth looking at currently are institutions that are eager to experiment, that face competition, that operate globally, that welcome entrepreneurs, and that do not benefit from restricting the movement of information.
In considering such entities, my attention most recently has been focused on eBay. EBay is typically referred to as the Internet’s largest online “auction house.” Familiar labels, however, do not work very well in this context. True, EBay is a web site where anyone with something to sell can put the item up for auction. Indeed, it is a rather remarkable site since, as I write this, there are over 1,800,000 items that are up for sale on eBay.com. Yet, “auction house” captures only a part of eBay and the nature of eBay could be described in quite a few different ways. It could, for example, be seen as a mall with low overhead, since many sellers are small businesses with many items up for sale. Or, it could be a flea market, since many used items are sold at a negotiated price. Or, if people started offering shares of stock, it might be considered a stock market (isn’t a stock market like a specialized auction?) Ebay, itself, labels its site “your personal trading community” and has trademarked the phrase. As with many entities in cyberspace, the physical cues that we often use to confirm our sense of where boundary lines between different institutions lie are not present in cyberspace and eBay’s core identity is hard to pin down.
Does a “place” like eBay reflect anything new, anything profoundly different from the commercial patterns we are familiar with? Does it signify the general directions in which institutions that are less fettered than law are moving, and which institutions lagging behind, like law, may follow? Since most of us have bargained over the price of something during a purchase and since bargaining is even the norm in real estate and automobile sales, one cannot really say that the lack of a fixed and uniform price is a novelty. EBay is intriguing and certainly provides much room for speculation but even I would want some more time to pass before concluding that we are witnessing what some might consider to be a new paradigm.
My interest in eBay came about as the result of a pilot project that the Center for Information Technology and Dispute Resolution at the University of Massachusetts conducted during March, 1999. Ebay asked us if we would try to use online mediation to resolve disputes arising out of online auctions. As we carried out this project in which over two hundred disputes were reported to us in two weeks, I came to believe that it was perfectly appropriate to resolve auction-related disputes via ADR. If eBay was alternative commerce, with highly individualized transactions, didn’t ADR represent the equivalent legal model?
There is, I think, some resistance to taking seriously eBay’s claim that is it a “personal trading community.” Even if it had not been trademarked, it would sound to our ears like a slogan, a sound byte, something intended for advertising and commercial purposes. It is probably all these things but that does not mean that eBay is not a “trading community,” a group, society or culture that has been created online and where interaction among participants is the goal. EBay is one of a huge number of communities that are emerging online, that are acquiring our allegiances in some way, and that need a legitimate legal order to hold these allegiances. If this is not a passing fad, then these legal orders that are being created online are worth looking at, since they represent some of the patterns for standard setting and dispute resolution that, at some point, will filter into the physical world.
* Professor of Legal Studies and Director, Center for Information Technology and Dispute Resolution, University of Massachusetts at Amherst. The dispute resolution arm of the Center is the Online Ombuds Office. The works of mine that deal in more depth with some of the issues discussed in this essay are The Electronic Media and the Transformation of Law (Oxford University Press, 1989), Law in a Digital World (Oxford University Press, 1995), “Cybertime, Cyberspace and Cyberlaw” Journal of Online Law (1995), and "Software Worlds and the First Amendment: Virtual Doorkeepers in Cyberspace" U. Chi. Legal Forum 335 (1996).
© 1999 by Ethan Katsh. All rights reserved.
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Colin Rule, Kennedy School of Government, Massachusetts
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The views expressed in this column are solely those of its author, and do not reflect those of JURIST, its Advisory Board, its staff or its host institutions.
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Patrick Wiseman, Georgia State University College of Law
Pedro Malavet, University of Florida School of Law
Barbara Glesner-Fines, University of Missouri-Kansas City School of Law
Jerry Kang, UCLA School of Law
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Mark Gould, Faculty of Law, University of Bristol, UK
Robert Lawless, University of Missouri-Columbia School of Law
Kim Dayton, University of Kansas School of Law
William Slomanson, Thomas Jefferson School of Law
