Anoraks Among the Suits and Jeans

Computers, Law and the Legal Academy

Peter Alldridge
Cardiff Law School
University of Wales
Alldridge@cf.ac.uk

Contents

1.	Introduction
2.	Computers and Law
3.	The Jurisprudential Paradigm
4.	What Socio-Legal Studies Might Do
	4.1	Discourse Analysis
	4.2	Globalisation
	4.3	Applications
	4.4	Regulation
References

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This is a Work In Progress article published on 30 June 1997.

Citation: Alldridge P, 'Anoraks among the Suits and Jeans: Computers, Law and the Legal Academy', Work In Progress, 1997 (2) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/wip/97_2aldr/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_2/alldridge2/>

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1. Introduction

When I proposed the Computers and Law stream of the SLSA conference, a couple of people indicated surprise to me and said: "Socio-Legal Studies has nothing to do with Computers and Law". In this paper I hope to show that it has. Once upon a time we all knew where we stood. In the 1970s, if you wanted to attend a conference at which blazers, college ties and suits were wholly abnormal, at which a distinctive sweet smell would in the evenings waft down the corridors of some 1970s concrete student residence, at which your Head of Department would most assuredly not be present, and at which your compadres would reinforce your self-perception as a rebel within a conservative department, you went to the SLSA conference. If, on the other hand, you wanted to get your dinner jacket out of mothballs and be snubbed by a few powerful people you went to the SPTL. We knew then who wore jeans and who wore suits. Now the borders are blurred. Partly as a result of successive RAEs, [1] socio-legal studies has moved from the margins to the mainstream. Heads of Department are now lined up in the bar and the Lord Chancellor is coming tomorrow to ensure the quality of the canapés that his Department is buying us. Would-be rebels now attend other conferences - maybe Critical Legal Studies or Feminist Legal Studies. That is the kind of ideological shift which over years you would expect to have happened: You would expect intellectual movements to be assimilated (as, to some extent, Critical Legal Studies, Feminist Legal Studies, Law and Economics and Law and Literature are being assimilated) to the mainstream and for other innovative ones to develop.

What of computers? Is there an identifiable place for computers and law on the attire continuum for Law Schools? Ten years ago, when the suit/jeans divide still had some force, the person interested in computers and law was a deviant within a Law School, and on the suit/jeans scale probably would have been in the slot for T-shirt, anorak, slightly too short polyester trousers and possibly odd socks. The computer nerd would be characterised as engaging in a hobby, doing something secretarial or engaging in magic (in each case, therefore not real work, with no requirement of recognition by promotion or otherwise). I think we're clearly past the anorak phase: Computing is now no longer the preserve of a self-selecting group within the academy. [2] The purpose of this paper to explore further the realignment of suit, jeans and anorak (doctrinal law, socio-legal studies and computers and law) which has been and is taking place.

My general thesis is the most significant changes in law (widely understood) over the last 10 years, both as a profession and as an academic discipline, are not the advent (and subsequent assimilation or demise) of critical legal studies, feminist legal studies, or autopoeitic theory, but the changes which technology has brought, and that socio-legal studies has not engaged sufficiently with those developments, especially information technology and in biotechnology (I shall deal here only with IT). It is no coincidence, for example, that the IOLIS disk (which contains teaching software commissioned and published by the Warwick Law Courseware Consortium) has yet to engage with sociology of law or socio-legal studies. Marginal attempts on it at "in context" have fallen pretty flat. The Journal of Law and Society has carried one article in this (general) area (Hutton, 1995) (there's another on its way) and Social and Legal Studies has yet to contain any.

2. Computers and Law

The changes effected by computers are not trivial. They are not merely technical. They are substantial and demand our consideration. By "Computers and Law", what we mean is a broadly defined set of phenomena ("legal informatics"?) containing, on the one hand, those specific areas of substantive and procedural law which have application to computers (copyright and intellectual property, freedom of speech, the jurisdictional questions to which the Internet might give rise, defamation and so on) and, on the other, the ways in which developments in technology have made available a range of techniques (word processing/document assembly, electronic mail, legal databases, whether CD or Internet access, Internet more broadly, teaching programs) which radically alter the ways in which we all do our jobs. That is they have significantly changed lawyers, and have changed and will further change law.

Apart from intrinsic interest, there are two major reasons why developments in IT should command our attention. The first, less important is that computers don't change things, and that we can deal with questions which are technologically novel with the same conceptual apparatus. The second is that computers do change things. Susskind's distinction (1996) between automation and innovation is critical. The question is whether you are doing essentially the same thing, albeit more efficiently and more effectively, or are you doing something new? Even with simple quantitative change there comes a point at which the quantitative change wrought by automation by sheer volume it becomes a qualitative one, requiring new tools of analysis, and conceptual innovation.

3. The Jurisprudential Paradigm

One of the troubling aspects of the advance of IT in the legal sphere is a jurisprudential paradigm which seems frequently to travel unchallenged. The problem, in a nutshell, is that the advent of the technology combines the most innovative techniques with the most reactionary jurisprudence. I'll give a three examples of what I mean - one from the literature and two from my own experience.

Susskind's acclaimed, and in many ways excellent, The Future of Law (1996) is informed by cutting-edge work in managerial theory, studies of the role of IT in organisations and specific developments in IT applications, but also by legal theory which - to a legal theorist - would have looked seriously out of date in the late 1970s. In a bibliography Susskind records the seven books on the nature of law by which he was most influenced as:

Author	Dates	Work	Date of Publication
Bentham	1748-1832	Of Laws in General	(Written c.1810) 1945 or 1971
Ehrlich	1862-1922	Fundamental Principles of the Sociology of Law	1913 (German);1936 (tr)
Kelsen	1881-1973	General Theory of Law and State	1922 (German); 1946 (tr)
Frank	1889-1957	Courts on Trial	1949
Hart	1907-1992	The Concept of Law	1961 (2nd Edn 1992)
Harris	1943(?)-	Law and Legal Science	1979
Dworkin	1939(?)-	Law's Empire	1986

If an author were to produce a book on law and x, (where x is history, geography, economics, literature, politics, sociology, popular culture), have the presumption to entitle it The Future of Law, but in it to acknowledge that the most important theoretical influences upon him/her, so far as concerns law, are these seven books, the reviewers would have a field day. What, they might ask, about Foucault, Habermas, Teubner, MacKinnon, Derrida, Coase, Unger or Posner? They clearly do not count in computers and law. Why is computers and law different? It might be said that because the whole enterprise (of computers and law) is regarded as practical, it needs no theoretical underpinning at all. Then, of course there is no need for this sort of bibliography at all. Alternatively, it might be said that because a scholar is dealing with computers s/he has ipso facto unquestionable credentials as being au fait. I suggest there is a little more to it than that, and I certainly don't want to be understood to be suggesting that Susskind doesn't cite anything more modern because he isn't aware of it. The choices which he makes are more interesting if made consciously. Susskind's list represents the dominant jurisprudence of many people in computers and law, and we need to be aware of that and to know the limitations of the paradigm. The problem is that this list is not just out of fashion. It also tends [3] towards a highly formalistic positivism. In many ways the distinctive book on Susskind's list is Harris', which is one of the few serious attempts since his death (there is also Tur and Twining (1986)) to revive Kelsen's jurisprudence, whose tenets (let me remind you) are:

• the grundnorm providing a formal test of the validity of a law;
• rigid separation of questions of validity and evaluation of norms;
• law regarded as a normative system of rules;
• the principle of imputation (the relation between the triggering facts and the obligation upon the official);
• rules directed at officials not citizens (legal rules are all in their essence of the form "if p then an official ought to q"); [4]

Why is this view of law one which sits well with the movement (dare we call it a movement??) for computers and law? Is this simply a matter of convenience? Conceiving law as rules of the form if p then q (I will use the expression "legal reductionism" as shorthand) is something which is enormously constraining. Even for those interested in teaching or writing doctrinal law, you might well be more interested in questioning whether q is invariably an appropriate sequitur to p, or whether a particular set of circumstances should actually be classified as p, than with the mechanics of rule application. But the advantage in computers and law is that as soon as the "legal" operation is characterised as an if p then q operation, then it becomes easy to perform it with a computer. At least in computing if p then q can be an enormously complicated operation. In the sphere of law even relatively complicated statutes (those which expressed algorithmically would have a good many junctions) the application (failing logical inconsistency) of clear rules to clear facts is a relatively mundane, mechanistic operation. If you are going to use computers in legal contexts, the pressure which computers generate is towards a rule-bound framework, because it is what they do best. There does seem to be a link, if not a logical one then a practical one, between technological innovation and jurisprudential reaction.

The two examples form my own experience were writing a module for the IOLIS disk, and examining by multiple choice. When I wrote for the IOLIS disk (I wrote on inchoate offences) I found it far easier to write interactive instruction dealing with a clearly defined area of law in a structured, non-discursive fashion than it would have been to write on an area which addressed fundamental and unresolved theoretical questions. In the Criminal Justice Module on Cardiff Law School I introduced mechanically marked multiple choice examinations. I have described the technique fully elsewhere. (Alldridge, 1997) Again the technique is best deployed in testing comprehension of clear cases of rule application. Both techniques (interactive teaching and multiple-choice examining) are most easily directed towards convergent, rather than divergent thinking amongst the target population.

The sacrifice which I made in each case (and I think it is a sacrifice) is of adopting the reductionist view. So far as the teaching software is concerned, I am under no illusions as to the limited value of what was produced. So far as the examining is concerned, the limited claim I make for multiple-choice examining is that anything examined by traditional problem questions can be examined by multiple choice. That doesn't mean I am a great enthusiast for problem type questions. Sometimes all that is sought is a means to get an unpleasant job done relatively efficiently. The claim I make here is that the pressure towards formalism using computers just as a means of getting our jobs done is a one to which academics bow for different reasons in different places, but it should not be done unconsciously.

To recapitulate, what I've said thus far is that there is a pressure generate d by the use of laws in legal context (teaching, writing, researching) towards a highly formalist, positivist model. The link is a contingent one - there is no logical one, but a practical one. If you want computers as your vehicle for doing law, you find yourself increasingly pushed towards formalism. That is not necessarily a bad thing if done consciously in relatively small doses. But it does tend to create a boundary between Computers and Law and Socio-Legal Studies. But Computers and Law is becoming so central to Law that Socio-Legal Studies ignores them at its own peril. So, at the risk of appearing pretentious, allow me to propose the beginning of:

4. What Might Socio-Legal Studies do in relation to Computers and Law

4.1 Discourse Analysis

There are few reliable statistics about the Internet. It is important to study the discourse because it is so difficult to know anything about, for example, the quantum of pornography on the Internet. Without being a fully paid up post-modernist it can make more sense to talk about the way in which people talk or write about the Internet than it does to talk about the "reality" of the Internet. There is a huge body of anecdote about the uses to which it is put, primarily by those seeking to legislate against it. We should welcome writing about writing about the Internet.

Take an analogy. A few years ago prominence was given to a series of news stories about "snuff movies" (ie those where a participant was killed, generally after torture). The stories were groundless. We ask now

'... Given the capabilities of actors and special effects artists, why on earth would someone take the risks of committing a real murder on camera to make a film that artifice can produce more efficiently? And since we've all grown up seeing violence portrayed in television and in film, how could a viewer "know" they were seeing real violence when we know it can be easily faked?...'(Avedon C, 1993)

We can (and should) ask why people were so willing to believe the "snuff movie" story.

As to the Internet, the ogre whom the stories have us fear is the pornographer. In 1995 an article (the famous Rimm study) was published in the Georgetown Law Journal (Rimm M, 1995)making claims about the proportion of usenet groups which devoted space to pornography. In one of his most notorious statements, Rimm concluded that 83.5 percent of the images available on the Usenet are pornographic. The paper had a mixed reception,(Cannon R 1996) (MacKinnon C 1995) but the generally accepted view is that, whatever the objectives of Rimm himself, the study was so seriously methodologically flawed as to be worthless. Again, We can (and should) ask why people were so willing to believe this story. Narrative accounts of the use of the Internet as being that bad thing which justifies the imposition of more intrusive police powers, extensions of the criminal law, and punishments follows from this. These accounts are appropriate objects for Socio-Legal study.

4.2 Globalisation

Globalisation is now being presented as the (economic) answer to all our problems: It is one of the principal foci of the Socio-Legal studies of this decade. Globalisation is presented as a triumph of free trade, generated by or generating homogenisation of rules and interdependence of legal systems.(Nelken D) How can you operate protectionist measures when its possible to contract in huge quantities over the Internet? What about the questions of taxation, jurisdiction and so forth which will arise? Appropriate Socio-Legal studies can only be written by those versed in the IT revolution.

4.3 Applications

The development of applications which perform legal tasks is naturally one of the most important tasks for computers and law. From the internal aspect (doing courts' jobs) the work being performed at Strathclyde by Hutton, Tata et al on sentencing is fascinating (Hutton N, 1995). There is ample literature on the reshaping of the law firm and the use of paralegals with technological expertise. Philip Lewis is writing about the lawyers who work in IT law.(Lewis P, 1996)(Lewis P, 1997)

4.4 Regulation

Papers for the Computers and Law stream were not commissioned (we talked about setting up a session dealing with the requirements of the Woolf Report dealing with computing, but nothing came of it). The response was the series of papers which we are going to hear, the preponderance of which deal with regulation f the Internet. Can you regulate, is the criminal law the most appropriate mechanism, what (if any) are the alternatives, should efforts be directed at the service provider or the author, how might the jurisdictional issues best be dealt with, and so on. Regulation has been for years the basis of a great deal of work in Socio-Legal Studies. It seems to me that there is much which can be achieved ( and the danger of reinventing the wheel can be averted) by the integration of the Internet regulation literature within that general strand.

References

Neil Hutton, "Sentencing, Rationality and Computer Technology" (1995) 22 JLS 549

Richard Susskind, The Future of Law (OUP, 1996)

Richard Tur and William Twining, Essays on Kelsen (OUP, 1986)

Alldridge P (1997) "Multiple Choice Examining in Law" (1997) 31 Law Teacher (forthcoming)

Avedon, Carol, 'Snuff: Believing the Worst' in Assiter, Alison and Avedon, Carol, Bad Girls and Dirty Pictures (Pluto Press 1993) 126 -130

Marty Rimm, "Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories" (1995) 83 Geo. L.J. 1849

"Cannon Robert, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway" (1996) 49 Fed. Com. L.J. 51;<http://www.law.indiana.edu/fclj/pubs/v49/no1/cannon.html>

Catharine A. MacKinnon, "Vindication and Resistance: A Response to the Carnegie Mellon Study of Pornography in Cyberspace" (1995) 83 Geo. L.J. 1959

David Nelken, Current Legal Problems

Philip Lewis, "Lawyers for High Technology Industries in an International and European Context: a report of research results" 5 Law Technology Journal<http://www.law.warwick.ac.uk/ltj/5-1b.html>

Philip Lewis, "Knowing the buzzwords and clapping for Tinker Bell" in (K Hawkins ed) The Human Face of Law (OUP, 1997)

EndNotes

[1] Which have accorded greater value to socio-legal work than might have been predicted, a development I am happy to applaud.

[2] I have heard it argued that viruses only became a problem from the time that the nerds ceased to be a smallish community.

[3] See Especially Harris’s book, which would surely get on few legal academic desert islands.

[4] Thus for example, the law of murder would be expressed in Kelsen’s terms 'If a person has been shown to have [followed by a full definition of murder] then the judge ought to sentence him/her to life imprisonment.'