Published on November 3, 2008 | by LawNews
‘Electronically manufactured law’ by Prof. Katrina Kuh
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 movable 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.