Review of M. Ethan Katsh
Law in a Digital World
Oxford University Press, Oxford, 1995
Reviewed by Andrew Terrett
- Paradigm Shifts
- Contracts in Cyberspace
- Implications for the Legal Profession
There is a Chinese proverb which takes the form of a blessing. It prays for the beneficiary to “live in interesting times.” If any student of law (in the widest sense) was in need of convincing that we live in such times, this book is ample evidence. For frequenters of cyberia-l and other US law-related listservs, the name of the author will be familiar in that he is a common contributor on many law and technology topics. For those readers who do not frequent such listservs, Ethan Katsh is a Professor of Legal Studies, at the University of Massachusetts, Amherst. This books builds on a previous work also published by Oxford University Press, entitled The Electronic Media and the Transformation of the Law (1989, Oxford). This book is both timely and welcome in that the massive technological and consequent cultural changes occuring both within and due to information technology have yet to be fully explored, theorised or systematised. Katsh takes upon himself one, albeit weighty, aspect of such changes namely, the implications for the law of the fundamental paradigm shift from print-based to digital media. In doing so, Katsh sets himself some lofty goals. In the introduction, he describes some of the questions that he wishes to address in the book. They include questions such as;
“Are these new technologies merely more efficient versions of the old? Are they simply new containers that bring the same product to the users in a new way? Do they simply move information faster? Or does the use of information in a new form particularly by an institution for whom information is a highly valued commodity, change the institution, the user and those who come in contact with the user?....” More particularly, Katsh asks of the law, “Do these changes make possible new kinds of legal relationships and allow people to interact with the law in new ways?” (Katsh, 1995, p.8)
Answering such questions is no small undertaking. One would suspect that the answer to this final question is “yes” - but how? In pursuit of his answers to the above, he identifies four areas of difference beween the print and electronic environments, namely (1) methods of distributing information, (2) methods of working with information, (3) methods of graphical and nontextual expression and communications (4) new modes of organising information (Katsh, 1995, p.16). This is not a book in which each chapter builds on the previous. Instead these four key themes identified above, re-appear at different times throughout the book and are interwoven one with another. The fact that purchasers of this book also receive an electronic version should not be over looked - one senses in his writing that Katsh almost anticipates a hypertext version of the book and feels somewhat constrained by the linear limitations of paper!
Katsh is, in effect, considering what Kuhn (1970) described some twenty five years earlier as a “paradigm shift.”. Kuhn wrote “a new theory, however special its range of application, is seldom or never just an increment to what is already known. Its assimilation requires the reconstruction of prior fact, an intrinsically revolutionary process that is seldom completed by a single man and never overnight.” An idea that recurs throughout the book is that the technological changes are not effecting so much a replacement but rather a displacement of the existing state of affairs, i.e. “of changing patterns and operations. It is not all-electronic lawyers or electronic judges that we can expect but lawyers, judges and citizens who interact with machines in new ways and, therefore, cause the process of law to become something different from what it has been.” (Katsh, 1995, p.15) The boundaries between the various legal actors is undergoing a fundamental and on-going sea change which is changing the very nature of the institutions and relationships between them. Katsh has a keen eye for noting how society attempts to incorporate new phenomena within an existing framework of language i.e. “we have labelled the devices that transform electrical impulses in to words on paper as “printers” and electronic databases as “libraries”. These characterisations...are understandable attempts to place new modes of processing and interacting with information in a familiar framework” yet “they are patently inadequate.” (p.25).
Within the main body of the text in Chapter One, Katsh begins by outlining some of the existing models of legal electronic communications, namely email to multiple parties, groups, and on-line services (examples being LEXIS and Westlaw.) Thereafter he considers the nature of space within the legal and informational contexts and the fact that physical distance is becoming less of a barrier to information access and yet conversely the informational distance is increasing because of the medium used. This may, one hopes, be only a temporary blib in the overall development of transparent computer systems so that investigation of legal information resources might, in time, be no more difficult than making a telephone call. However, we are clearly still a long way from this.
At the commencement of Chapter Four, one senses that Katsh makes an intellectual gear-change and presses a little heavier on the academic “gas pedal.” After a brief historical diversion, the author goes on to consider three fundamental changes; the movement towards information that is less stable and permanent (in the sense of type that is less fixed and irrevocable,) away from mass production and distribution of information (in that electronic publishing incurs no distribution costs,) and towards machines that respond to and anticipate user actions (in that electronic distribution of legal information offers the “producer” of information an opportunity to observe the “purchase” electronically and thus adapt the “product” accordingly to meet the “consumers” needs.
In Chapter Five, Katsh returns to the intensely practical issue of contracts in cyberspace and given the fact that legal relations have in the past been governed by a piece of paper, which now is subject to adaptation, copying or destruction, he provides a consideration of the alternatives and some of the opportunities that present themselves as a result. Having briefly considered and acknowledged the importance of EDI, he concludes that while “paper contracts bind parties to an act...the electronic contract binds parties to a process.” (p.129) What Katsh means by this is that a productive contractual relationship is not formed at one particular moment but instead is formed and develops over time. While paper is stable and has clear boundaries which provides a sense of security to the parties, it can often fail to take account of changed circumstances. What is more, parties to a contract who wish to continue to do business with one another rarely litigate. Instead they agree to adapt the contract. Thus as electronic print displaces paper new opportunities develop for a dynamic contractual relationship which can be reflected in this new form of electronic contract.
Chapter Six considers the development of the visual image within the law, at both professional and educational levels. For lawyers who operate in a world where words are the sole carrier of meaning and whose primary tools are texts, this might seem to be a strange departure. However, it is interesting to note how we, the users of the legal texts have been trained to consider only the textual because of the nature of the medium i.e. paper, in developing understanding and meaning. Katsh reflects upon the possibilities that the electronic medium might have upon legal processes. Quite where this is leading us, it is too early to say; Instantly adaptable fly-by visualisations of personal injury cases? Juries watching virtual reality simulations of crimes, torts or physical disasters?
Chapter Seven looks at the implications of these changes for legal practitioners. While noting the importance of software that allow lawyers to perform their existing tasks more effectively, Katsh identifies the electronic service, Lexis Counsel Connect as a hint of what is to come and suggests that this type of service actually changes our understanding of what lawyers do and how they act. Lexis Counsel Connect is an attempt to bring lawyers of all descriptions together, to foster relationships, to engage in substantive discussion, to provide information on useful resources for legal research, etc. Katsh notes a fundamental difference in this electronic environment is that information is there to be shared rather than protected. This creates some difficulties in that one of the ways in which the legal profession sustains itself is through the restricted access to legal information. Lawyers have been the controllers of the legal information space. However, the “movement of information electronically appears to have little more respect for institutional and professional boundaries.” (p.179). He anticipates a place where the traditional model of the legal profession is under threat and reacts accordingly. However, he also anticipates a profession which finds new opportunities “to process and re-combine information in novel ways.” (p.189).
Chapter Eight looks at the technology of hypertext which might be described as the glue of the Internet World Wide Web. Indeed, the Internet would still be considered a scientific backwater and electronic journals in law such as this one would offer little new were it not for hypertext. Thus a chapter on the subject is only to be expected. Much has been written on hypertext, both in non-legal (Bush, 1945, Barrett, E., 1988, Landow, 1992, Neilson, 1991,. and Nelson, 1981) and legal contexts (Terrett, 1994). What Katsh identifies as different about the technology is that hypertext has implications for our understanding of space in both physical and informational terms; distance is no longer a barrier but the navigational problems are immense.
Finally Chapter Nine considers the most pressing of substantive legal problems in the information age, namely the regulation of “cyberspace” What relevance does the present system of copyright have to materials that are instantly copyable and transferable? The legal concept of copyright developed over time to protect the monopoly afforded to printers. What relevance does that concept now have to a world in which information is transferred not as print on paper but as billions of electrical impulses. Many thousands of the various actors in publishing are asking the same question. Making reference to the cni-copyright listserv, Katsh notes that “never before in the almost three hundred year history of copyright law have so many people in one “place” had such an extended discussion of how copyright law should be applied.” (Katsh, 1995, p.215). In this Journal environment, copying is occurring all the time - if you are reading this book review, you have created a copy on your own computer. Indeed, the editor of this Journal (unlike the editors of traditional print-based Journals) will be hoping that many thousands of copies of this review and the items within this Journal will be copied. The present structure of copyright does not anticipate a world in which information can be replicated with such ease. Katsh does not develop any new ground-breaking approach to this conundrum or look into a crystal ball and see a solution far on the horizon. He does, however, identify perhaps an important kernal as an idea for the regulation of this new information economy; “the challenge to develop a newregulatory model...is not merely to control copying but to find a way to see copies as constituting a link between copier and creator and to ensure that this link is rewarding to both.
It is customary for a book reviewer first to attempt to rubbish the entire approach of the author to his topic and secondly, if the first approach is not an option, to find at least one significant fault with either the arguments or presentation. This reviewer can find little to fault on either count. One might argue that Katsh glances over certain topics when a more in depth analysis would have been helpful but even this criticism would be a little unfair in that there are so many varying themes to be addressed. This is an immensely readable and intelligently written book that has as much to say to the sociologist, the law librarian, the legal publisher as to the practising lawyer. (This reviewer noted few references to the substantive law and for this, Katsh is to be thanked.) It is a significant, if at times controversial, attempt to contextualise the developments that we see unfolding before us in law and technology. Katsh does a great favour to his readership by addressing the implications of the digital revolution for law without drawing the reader into the detailed technical information which, thankfully, is kept to an absolute minimum.
Katsh does not attempt to develop simple answers to the many complex problems we see unfolding before us i.e. copyright, the temporary nature of digital text, the problems of conducting business digitally, privacy, etc. Readers looking for this type of book will be disappointed. Rather, Katsh considers the “bigger picture” and in doing so, successfully identifies some key themes, provides astute observations in the various debates and in process, has laid the foundations for future academic debate that is likely to be both innovative and exciting. Interesting times, indeed!
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Landow G 1992. Hypertext. Baltimore, John Hopkins Press.
Neilson J 1991. Hypertext and Hypermedia. San Diego, Academic Press.
Nelson T 1981. Literary Machines. Swarthmore, self-published.
Terrett A 1994. Hypertext - New Paradigms in Legal Education. 9th BILETA Conference Pre-proceedings, University of Warwick.