Anthony J. Kinahan (General Editor)
Opening Pandora's Box? A Review of Now and Then: A Celebration of Sweet & Maxwell's Bicentenary 1999
Available as a book and on CD-ROM
Like rabbits paralysed by oncoming headlights, our publishers sometimes appear to be completely helpless in the face of the wholesale digitisation of legal information. In view of this, we might have suspected that a book celebrating Sweet & Maxwell's (S&M's) bicentenary would not dare to be other than backward looking, complacent and self-congratulatory. Commendably, though, the firm has avoided the temptation to produce such a book. Well...almost! Although there is a small amount of this sort of writing, most of the pages of Now and Then have been given over to the publication of essays by legal professionals from a wide variety of different standpoints. Ten non-S&M authors in addition to several S&M authors have been invited to try their hands at legal futurology. They have all been asked to predict the shape of the legal world in general and legal publishing in particular a quarter of a century from now. What I intend to do in this review is to survey briefly the strengths and weaknesses of each of the essays before giving a brief overall assessment of the value of this work.
The first contribution entitled 'The Acquisition of ABP by The Thomson Corporation: 1987' by Michael Brown would seem to have escaped from one of the company's annual reports. I do not feel that it has much to contribute to the larger theme of the book, nor can I imagine that it will be of a great deal of interest to the majority of potential readers. By contrast, Anthony Kinahan's warts-and-all essay on Sweet & Maxwell from 1974-1999, although inevitably backward looking, does usefully set the scene for what is to come later. Interestingly, it sheds some light on why the first CD-ROM version of Current Law was clogged up with digitised images of each page of the paper version. Apparently market research indicated that this was what the users wanted. Perhaps the lesson is that while there are times when publishers should slavishly follow the whims of their customers, there other times when only firm and resolute leadership will do!
As CEO of the West Group, Brian Hall is well qualified to write about the global legal information industry over the next twenty-five years. His forecasts are certainly thought-provoking - especially his prediction that the law publisher of the future will need to collaborate with technology companies, communication companies and even other content providers - an extended enterprise geared to adding high quality value to raw content. Hall also forecasts that, instead of digital works simply replacing hard copy, we may well see a merger of these two media in the form of what he calls 'electronic paper'. His view that, even in the longer term, legal information will still need a great deal of face-to-face selling rather puzzles me, though. Is he talking about a continuing need for actual presence, or does the 'face-to-face' of the future embrace synchronous, video-based, virtual presence? The fourth and last of the S&M contributors is Mike Boswood. He attempts to tackle the key question of where the company may be heading over the next 25 years. I have to confess that I had one or two quibbles with this piece. Firstly, I feel that Boswood's decision to talk in fairly concrete terms leads him into a discussion that is unavoidably short-term. The picture that he paints is of law publishing 5 to 10 years on rather than in 25 years. Better, I feel would have been to identify broader, more abstract trends and explore the way that they might change the industry over the longer term. I also feel that Boswood - Cnut-like - wants to control the tide of the future in order to ensure that S&M is still thriving and doing recognisable things in 25 years. For the most part, though, it is S&M that will have to do the changing if it is to survive far into the future. For all law publishers the position is surely clear - adapt or die!
With the publication of The Future of Law, Richard Susskind established himself as our foremost legal futurist. He deals with his subject matter at a level of abstraction that makes his predictions on the longer-term future of legal information providers deserve particular attention. Furthermore, his standpoint is untied and completely open-minded. Indeed, in his current position, it could not be otherwise. Susskind sees the future as a shift from supplying legal information to providing knowledge, whether as a service to judges and legal practitioners or directly as a product to existing and latent markets of clients. The role of those who publish such knowledge sources will, therefore, be considerably enhanced. But who will these publishers be? He predicts that work of lawyers and publishers may in some cases actually converge. He writes:
It is entirely conceivable, for example, that a leading legal practitioner may be invited to collaborate, even on a permanent basis, with imaginative electronic legal publishers who may retain the services of this lawyer at rates which could match or exceed the fee-income which would be generated by traditional work on an hourly billing basis.
But this evolution will not necessarily occur in isolation. In the wings, Susskind reminds us, are the large accounting and consulting firms who could turn out to be better placed than either law firms or legal publishers to exploit the growing market for pan-professional services.
Soon, a huge proportion of our global information resources will be digitised and accessible via the Internet. Clearly, this process is having a profound effect on intellectual property rights. Hugh Brett considers the whole debate about the future of Crown Copyright, particularly with reference to UK legal texts. I found his essay to be informative and useful about the current position although I would have welcomed more of an attempt to foresee the position a quarter of a century from now. Allison Firth in a scholarly piece sets out an intriguing scenario of the longer-term future of property rights in digitised information. In essence, she argues that as the technology pushes us forward, one possible, paradoxical effect on the law of copyright is that it may move backwards, reverting to an older form.
Sir Henry Brooke himself is an excellent model for our future judges to emulate. In his essay on 'The Courts and Judiciary in 2024' he demonstrates impressive candour and open-mindedness whilst at the same time providing a rich sense of perspective and context. One thing that surprised me, though, was his implicit view that the English/Welsh version of the common law tradition will survive substantially intact 25 years from now. It is interesting to compare his stance with that of George Gretton later on. Surely, as we move rapidly towards an era of continent-wide legal systems, merger of the civil and common law traditions in Europe looks inevitable? Given that the predominant type of system in our continent is civil, the common law system may well take the lesser role. I myself would be willing to accept this state of affairs if, in return, English were to become the lingua franca of Europe!
Nicholas Davidson gives us a personal view of the future of advocacy in England and Wales. His contribution focuses on the likely impact of, in particular, the Access to Justice Act. I found his perspective to be rather short term, though. Also, I was not clear why he seems so certain that we will still have a divided legal profession in 25 years. Finally, in declining to deal with the impact of technology on the advocates of tomorrow, I am sorry to say that, for me, his vision lacks the wings with which it might otherwise soar. By contrast, Graham Smith's discussion entitled 'Time, Space and the 2024 Commercial Lawyer' is an excellent piece of legal futurology. His systematic and thorough approach produces a series of powerful and compelling predictions of commercial practice in the longer term. I found his discussion of human time shifting via the use of intelligent agents to be particularly thought provoking.
I very much enjoyed reading Richard Barr's vision of general legal practice a quarter of a century hence. However, I do not feel that legal futurology is yet his forte. I cannot imagine why in 2024 we will want photocopiers that cope with books, artificial intelligence applications that scan the post, and a secretary computer 'the size of a filing cabinet'! At one point, he remarks that computers will never 'become so convenient to use that they will supplant a real book'. What he misses, I think, is the possibility that computers and 'real books' will merge. Certainly, both Hall and Paliwala make this prediction. Barr's contribution reminds me of an eighteenth century illustration I once saw of what life in the twentieth century would be like. The artist predicted that our modern city streets would be crowded with gentlemen in cocked hats, wigs and breeches travelling around on what looked like tricycles! Susan Mansfield belongs to a group the members of which have emerged as high priests and priestesses in today's law firms - the legal information professionals. As such, her views are particularly interesting. One quibble, though. I think that she treats her essay as a contribution to a balloon debate. Her vision seems to be predicated on the belief that whatever else happens in the next 25 years, legal information professionals will survive and prosper. I am not certain that I agree. If Susskind is correct in predicting that the emphasis of our technology will shift from information to knowledge, legal information skills will become ripe for mechanisation. A case of easy come easy go, perhaps?
Abdul Paliwala explores what he calls one of the futures of legal education in a contribution entitled 'Leila's Working Day'. He begins by using the medium of science fiction to produce an image of what life may be like for a typical law student in 2024. I think that this technique works well, giving the reader a powerful sense of being there. Usefully, Paliwala discusses just how he things the trend towards globalisation will impact on the legal education of the future. Perhaps the most valuable part of this contribution is the section called 'Rediscovery of learning', where the author shows us how learning technology may well help us to achieve a number of goals that have been long espoused by education theorists but which, so far, have been slow in the attainment.
The last two essays in this work consider the future from respectively an Irish and a Scottish perspective. Robert Pierse, in a contribution called ' Legal Practice in Ireland 1999-2024', begins by stating his belief that the lessons of history are helpful in predicting the future. I have long thought that this is a rumour spread by historians for their own purposes! There is a particular problem in using history as a means of foretelling our technological future. Having to move over and share our world with a new race of thinking machines is totally unprecedented. Pierse warns law publishers of the risk that lawyers may take over their role, particularly as self-publication on the Internet becomes a growing norm. Otherwise, his vision is perhaps limited in one significant respect. He focuses on the way that technology will enable practitioners to do the same activities as now in different ways. However, I do not think he really tackles the likelihood that entirely new activities are becoming possible as a result of the headlong advances in computing and communications. George Gretton writes about the future of law rather than legal systems. He does so very convincingly. He argues that Scots law is about to enter a golden age. As we move towards a continent-wide legal system in Europe, he points out that this must inevitably involve a convergence of the civil and common law traditions. Scotland, which already has a mixed system of common and civil law, is perfectly placed, he argues, to act as a bridge between these two traditions. Gretton seeks to reassure those who fear the results of such convergence by suggesting that enormous utilitarian benefits will result from the ensuing diversity.
I recommend Then and Now as a highly readable and useful collection of legal futurology. There are notable contributions by such leading legal futurists as Richard Susskind, Sir Henry Brooke and Abdul Paliwala. There are fine essays too by others such as Brian Hall, Graham Smith and George Gretton. All the other essays have useful contributions to make. One or two, though, demonstrate that writing about the more-distant future requires some rather special skills. What are they? I suggest that there are three. They are: the ability to work with abstractions; open mindedness; and vision. If we try to understand the future by means of concrete ideas then we tend get nowhere. The only cognitive tools that work, in my view, are abstract concepts. It is necessary deal primarily in broad trends, themes and tendencies. Open-mindedness - even a willingness to think the unthinkable - is essential. The future rushes towards us like a great, surging tide. We are powerless to stop it. We have limited power to shape it. The most that we can hope to do is to ride it and, perhaps, to deflect it towards more useful ends. Finally, 'the vision thing' demands nothing less than a bold leap of the imagination. To achieve this, one must be willing to transport oneself from the present into the future in a completely non-sequential, non-linear way.
This is a Book Review published on 29 October 1999.
Citation: Widdison R, 'Opening Pandora's Box? A Review of Now and Then: A Celebration of Sweet & Maxwell's Bicentenary 1999', Book Review, 1999 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/widdison1.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/widdison2/>