Peter W. Martin
NCAIR Sponsored Program on
the Future of Legal Information Technology
May 1995
The future of legal information technology in fewer than twenty pages -- however attempted the implicit velocity will be enormous. It will require so fast a pace my aim can only be to identify some of the larger shapes I foresee through suggestion and illustration. Careful or detailed development are out of the question.
These reflections are divided into five sections. The first and second contain a swift look back, positioning the future of this field against its past. The third identifies, only to finesse, a clutch of important transition issues that either do or ought to concern the participants and stake-holders in the legal information system. Section IV sketches four areas of fundamental change made possible by digital technology. A concluding section (V) suggests a few connections between these observations and the field of artificial intelligence and the law.
In a recent paper ("How Traditional Models of Distributing Official Information Have Been Influenced by Available Technology"), I surveyed the five century history of printed legal information. Doing so I reached several core conclusions about the relationship between information technology and the activity or process we identify as "law." Stripped of all supporting detail they include the following:
"Legal information technology" or "legal informatics" as it often called outside the U.S. has deep effects on the domain in which we lawyers and legal academics work and on those ultimately affected by law. These effects are infrequently noticed because for most days and most purposes legal information technology is as much in the background and as "transparent" as language, gesture, and even the stereotypes we hold so dear -- especially for those who work with law on a daily basis.
The assertion that legal information technology has affected law does not refer to a distinct legal system or a particular corpus of rules and principles (the law of privacy or commerce or taxation), but refers instead to the activity or function or phenomenon we call law, focusing especially upon the central role of communication in the law process. It is in this sense of the word "law" that one can observe, for example, that the common law view of appellate decisions as precedent was far more a consequence of their distribution in printed law reports than the introduction of printed law reports was a consequence of the importance attached to judicial opinions as precedent.
The impression of stability can be attributed to the transparency of the subject, already noted, and the fact that its fundamental nomenclature has remained constant for several centuries. It is all to easy to lapse into the "book is a book, library a library" fallacy. To say that law has been carried out using the same book and library technology for five centuries is like saying that water transportation has not changed over an even longer period because it has continuously employed boats.
The present interlocking systems of topically indexed court reports, compiled and annotated statutes, collected and managed by information professionals in libraries with associated finding tools, expert literature, and specialty services has been erected over less than a century. These systems are at once a consequence of certain notions about the nature of law and of software innovations running on the book hardware (like forward citators and topically compiled and codified statutes and regulations, with annotations), but also a very direct product of reform efforts seeking to harness available information technology to improve access to law or (to use a more active notion) legal communication.
As Marc Galanter has observed, law "usually works not by exercise of force but by information transfer, by communication of what's expected, what forbidden, what allowable, what are the consequences of acting in certain ways." Galanter points out how such notions as "deterrence," "bargaining in the shadow of the law," and "legal socialization" assume an information flow. (Marc Galanter, "The Legal Malaise: Or, Justice Observed," 19 Law and Society Review 537, 545 (1985).)
Consider what it would mean for the U.S. legal system if the decisions of the Supreme Court were not widely available for years, and legislative acts were available only at a limited number of national centers or libraries, chronologically stored and poorly indexed. Imagine further that policies and individual determinations by government agencies were available only in the offices of the agencies themselves with whatever degree of order or user assistance they managed to achieve. One doesn't have to travel back too many years in U.S. history to find a situation bearing strong resemblance to this picture or today journey far around the globe. In 1995, there are countries embracing the "rule of law" where effective distribution of high court decisions are a decade or more in arrears. In Tanzania, for example, with financing from the World Bank, the Faculty of Law at Dar es Salaam is presently undertaking publication of the nation's Law Reports for the period 1983-1992.
Since many legal norms do not operate through citizen self application, the quality of communication within the structure of government is vitally important to how law is carried out. In areas like tax and social security, law operates through large government structures, which intersect the lives and activities of huge numbers of citizens. Qualities of performance such as timeliness, consistency, and equity (like cases treated like, different cases, with appropriate difference) are strongly influenced by how communication of governing legal norms is accomplished within these agency structures. In areas of the law where judges or judges and law enforcement officials are essential elements of the law application process, the concerns are quite similar even as the means of communication are likely to be different.
Better access and improved communication have been consistent targets throughout the history of printed law -- from Sir Edward Coke who translated the classic Littleton's Tenures from "Law French" into English so that it might be understood "seeing that ignorance of the law is no excuse," through the early 19th century statutes that required judges to write out their decisions so that accurate copies might be distributed in print, the late 19th century codification and restatement movements that were premised significantly on a view that law derived from the mosaic of judicial opinions was too inaccessible, to the Administrative Procedure Act and subsequent "plain English regulation" movements of the 20th. In some instances, concern that people be able to know the grounds of their accountability, "ignorance of the law being no excuse," captures the rationale for these reforms, but in many the aims are better understood affirmatively. That is to say whatever aims the law is seeking and through whatever intermediate means, the prime instrument is communication. Efforts to make law more accessible, more understandable, more clearly expressed are ultimately efforts to make law more effective and in a democracy, more accountable.
Better information flow leads inexorably to information overload. That too has been a recurring theme in the pre-digital period of legal information technology. The century preceding LEXIS is filled with efforts to organize, to filter, to codify or condense the flood of book-based law.
A short twenty-four years ago, LEXIS first offered U.S. lawyers a computer-based federal tax library, comprised of statutes, decisions, and agency material. It was a novelty then, greeted with huge skepticism. From a present vantage point, one can observe that the introduction of digital law set loose momentous and unsettling change. In the decades that followed the birth of LEXIS, computer-based law systems moved from being powerful print supplements used by a few to print replacements relied on by many. Following the initial revolution have followed more recent ones involving different digital delivery systems, notably CD-ROM and wide area networks. The resulting rate of change has become enormous.
Largely because of this technology shift, the multi-billion dollar U.S. legal information industry is undergoing massive realignment. Emerging are three or four large enterprises possessing full print and electronic publishing capability plus a host of new small ones. The digital portion of the legal information market has surged well past 50%. Pure print houses are selling out or scrambling to acquire electronic publishing capability. Several serious all digital houses have sprung up -- with names like Lawline and Hyperlaw. The technology shift has also brought great stress to the unexamined "partnership" relationships formed earlier in this century between public bodies (which both generate and need legal information) and members of the private sector legal information industry.
These interconnected changes have fueled battles over the degree of copyright protection of legal information and a struggle for media and vendor neutral citation -- as those favored by past distribution patterns and citation norms have attempted to fighting off new competitors with both copyright claims and established citation standards keyed to a single benchmark print version. The sums and energy devoted to these "technical issues" leave no room for doubt that the stakes are very high.
Point and click, graphic user interfaces have come to law bringing images and color.
Last and hardly least, the Internet has exploded. When, in 1992, Tom Bruce and I, with NCAIR's support, launched the Legal Information Institute of Cornell Law School, putting the first law server on the Internet, it drew notice outside the law but mostly puzzlement within. Less than three years later several of my colleagues' children have homepages, URLs appear in local newspapers and mass audience national magazines, the best selling publication of the American Bar Association is a book entitled: "A Lawyers Guide to the Internet" and public bodies in increasing numbers are placing legal information directly on the Internet.
Any time change occurs at this rate, it raises many complex transition issues and generates numerous unanticipated side effects. There is a strong temptation to dwell on them. They are both important and challenging. They touch on powerful vested interests, including the legal profession, and on deeply seated work habits. But these issues are the present not the future. To reach a view of the future, I am going to assume (and ask you to assume) that certain key transition issues will ultimately be resolved responsibly, despite strong countervailing pressures.
What follows assumes that:
Place and space will, given this new environment, be far less important -- with disturbing consequences for those favored by proximity under the preceding system, particularly those with a stake in the information collection and distribution places we call libraries. I ask you to assume that the public gains from this shift will be understood as being more important than the losses suffered by the various interests that have enjoyed locational or professional advantage in a world of print libraries.
To reiterate, I ask that you suspend any skepticism or disbelief you may have concerning these propositions so we can turn to possible or likely longer term effects technology will have on law and its central institutions. In brushing past these transition matters, I do not mean to belittle them. It took a generation after Gutenberg printed the first book before a printer was able to throw off the idea that a printed book had to look like (and work like) a manuscript.
Bold in the belief that the dimension of change opened by digital technology is enormous -- not simply as a means of doing law, as we have known it, at faster speeds, over greater distances, as it surely will, but change of a more fundamental order -- I shall try now to reach as far as my imagination can see, at the risk of errors of foolishness or miscalculation. In order to stimulate and provide plenty of target for discussion, I'll be more specific than general, inviting you to extrapolate my particular points to fields you know. Obviously, that gives you another option which is to conclude that a perspective that comes from working with Social Security, Intellectual Property and Land law and in non-profit publishing on the Internet is seriously skewed.
Vol. 437 - New York Supplement
This book standing by itself holds little value. It is one volume of over nine hundred delivering the output of New York Courts to date. This one contains a thousand or so decisions rendered by New York Court in 1981. Without its companion New York Supplement volumes, the 13 volumes of Shepard's Citations reporting which of its opinions were subsequently reversed or distinguished, bookcases full of annotated New York Statutes and Regulations, book access to New York legal information is incomplete. In fact, given the importance of federal law on one side and municipal law on the other to such topics as civil rights, business finance, or real estate development, such a collection would be incomplete for a citizen or enterprise or law firm concerned simply with New York State. For a regional, national, international actor access to appropriate legal information in book form means access to a very large library.
Such libraries do exist, and they provide up-to-date and comprehensive legal information of an unparalleled quality to those who work close by them and who possess the necessary skills to use their resources.
The information system law libraries embody works far less well for ordinary citizens and all who live and work any distance away. The public institutions founded in the U.S. to expand access to legal information - notably court and county law libraries - have been seriously underfunded. They have, as a consequence, inadequate collections, staffing, and services.
By contrast the exploding reach of the Internet promises to bring an enormous collection of legal materials into small offices and schools and homes in very remote settings.
There are greater barriers than miles separating most citizens from relevant and important legal information. Ethan Katsh's new book, "Law in a Digital World" details how law delivered through law libraries remains at a great informational distance from non-professionals, no matter how close they may be geographically. Encoded in professional language and linked using a citation system that requires special skills to follow, law book/law library information is distant from even highly literate citizens.
Decisions of the U.S. Supreme Court Accessible Through the LII World Wide Web Site
In a point and click networked environment a high school student or professional in some field other than law can retrieve particular decisions by a Supreme Court justice or follow a precise statutory reference without knowing "legal citation."
The same ease of use considerations make it possible for disk-based materials to open a path for non-experts from broad description of a legal point to the most specific regulations or a closely analogous case. That path can give the user a degree of control over direction and depth of research that only very skilled researchers can achieve using print.
Point and Click Navigation Can Bring a User of Social
Security Plus To a Relevant Text
Overview and From
it to the Cases, Statutory Provisions, and Regulations Most Directly
in Point
On March 28 the U.S. Supreme Court delivered an important trademark opinion in Qualitex Co. v. Jacobson Products Co. (No. 93-1577). Writing for a unanimous Court, Justice Breyer construed the language defining the reach of the Lanham Act -- "word, name, symbol, or device" -- as encompassing color. Qualitex had registered "a special shade of green-gold" as a trademark for pads it sold to dry cleaning firms. The litigation that brought this issue to the Court arose when a competitor, Jacobson Products, began to sell pads of a similar color. Prior law on this point was far from settled, but market realities had already broken down narrow readings of the Act. As Justice Breyer noted: "The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca-Cola bottle), a particular sound (of NBC's three chimes), and even a particular scent."
Does it seem natural to you, or as discomforting as it has come to seem to me, that the Court's decision explores and rules on the role of color in identifying the Qualitex brand of pressing pads without including a full color picture of this "green-gold" object and its "similar" competitor? Or that the presentation of the issue to the Court was similarly "colorless"? Among the arguments rejected by the Court was that of "shade confusion" -- one resting on skepticism about the competence of courts to distinguish between shades in infringement suits. Was the legal conclusion sounder for having been rendered without having looked at the "confusingly similar" colored pressing pads?
During oral argument there was a largely frustrating exchange between the justices and counsel over whether trademark registration of colors might ever proceed without a showing of "secondary meaning." It took the form of hypotheticals framed ineptly by such words and phrases as "weird" colors, "lime yellow", and "hot neon pink." Visual examples were not used.
The Court's earlier decision in Two Pesos, Inc. v. Taco Cabana, Inc., 112 S. Ct. 2753 (1992) dealt with the question whether "inherently distinctive" trade dress is protected by section 43(a) of the Lanham Act "without a showing that it [has] acquired secondary meaning." The factual background of that case was a jury finding that Taco Cabana's restaurant decor had not acquired secondary meaning but was "inherently distinctive." About this "inherently distinctive" trade dress the Court tells us:
"[It consisted of] a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme."
Would not this critical concept of trademark law, largely worked out in connection with words and phrases, have been more effectively pursued by the Court had it been able to see and use graphic images? About the defendant's restaurant the Court says merely: "Two Pesos adopted a motif very similar to the foregoing description of Taco Cabana's trade dress." [Emphasis added.]
The world to which law must relate has color, shape, and texture. Law that speaks almost exclusively through words and without color is severely handicapped (more in some areas than others).
Legal systems that take in information, to inform judgment or to record a situation or individual claim, are handicapped as well by the dominance of words over image -- with perhaps even greater consequence. Given that color can, under Qualitex , be a registerable trademark and can, as was firmly established before, be a significant element of a design registered as a mark, how does the registrant submit the mark for registration? The regulations call for drawings of a mark -- black ink, no shadings -- and then lay out a crude system for encoding color in black and white. See 37 C.F.R. § 2.52 (1994). At this one of several places in the Code of Federal Regulations where color is the very subject of a legal claim, line representations of color are used.
How text bound is current U.S. law? Out of 72,161 federal court decisions filed in 1994 and loaded into LEXIS only 130 included a chart, map, photograph or other graphical element. No sections of the U.S. Code directly include such material (although specific maps are occasionally incorporated by reference), and only 913 sections (out of over 200,000) in the Code of Federal Regulations do.
At the risk of trivializing this point as we leave it, let me quote the text of 4 U.S.C. §§ 1 and 2:
§ 1.
The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.
§ 2.
On the admission of a new State into the Union one star shall be added to the union of the flag; and such addition shall take effect on the fourth day of July then next succeeding such admission.
The thought experiment I ask you conduct is this: Imagine someone being handed this text and being instructed to make or draw a flag. Better yet imagine someone being prosecuted for mutilating one of these or using it in an advertisement.
I have read about but not seen a 16th century Flemish criminal law book that contained a beautifully detailed engraving depicting each crime it discussed. My experience as a law student offered nothing approaching it. During recent centuries pictures and especially images including color have been squeezed out of ordinary law books, statutes, regulations, and even judicial opinions by very practical factors -- sometimes at great sacrifice in clarity of communication.
Digital law can change that. Today, ordinary desktop (and even laptop) computers deliver color and in line images, not just from local files but via the Internet from anywhere. Color printers now cost no more than an IBM selectric used to. What might it mean for law to have images and color added to its language? Ethan Katsh writes that: "Illustrations are not a part of traditional legal education because they would make it more difficult for law students to develop the habits of thought that are considered to be at the core of being a lawyer." ("Electronic Media and the Transformation of Law", at 257.) While I am less confident in attributing aim or purpose, I agree with Katsh that the effect has been profound: "The effect of excluding images, full-colored images, including flowcharts, and diagrams and illustrations of accident scenes or allegedly defective products, or the dust-casting cement plant set against its surroundings, is to diminish the effectiveness of our consideration of important legal issues and to push law toward the abstract or conceptual." And therefore I agree with Katsh that bringing visual elements into law will bring important change. To conclude this point, once more using Katsh's words, (Id at 262.): "As limits on the form of information are relaxed, limits on thought are lifted as well. ... The information-reduction function of print that fostered the development and use of abstractions will be challenged as we are given more information to think about and some information that, like music, poetry, or drama, may touch us or move us in ways that are difficult to articulate."
Campbell v. Acuff-Rose Music, Inc., decided in March of 1994, 127 L. Ed. 2d 500, is an important Copyright "fair use" decision. The litigation that brought the issue to the Supreme Court arose out of a 2 Live Crew commercial recording of the Roy Orbison song, "Oh, Pretty Woman." Acuff-Rose, copyright holders of the Orbison song, had refused permission for the recording. 2 Live Crew asserted that their version of the song was a parody and that as a parody it was protected by the doctrine of "fair use," notwithstanding its significant commercial success. Among the elements of the "fair use" analysis applied by Justice Souter's opinion for the Court is an investigation of "the amount and substantiality" of the portion of the copyright work that has been reworked in the parody. The Court's analysis of this issue not only concerns the lyrics of the two versions (which it attached in an appendix to the decision) but the different sound of the "parody." We are told by Justice Souter that "2 Live Crew not only copied the bass riff and repeated it, but also produced otherwise distinctive sounds, interposing 'scraper' noise, overlaying the music with solos in different keys, and altering the drum beat." While both radio and TV news broadcasters were able to and did illustrate the Court's decision the evening it came down with recorded excerpts from both versions, the Court was limited by the technology available to it to reprinting the lyrics. Indeed, it appears likely, though not certain, that the members of the Court decided the matter without themselves having access to the original song or the parody.
There are many law domains in which substantive rules and even more commonly procedural ones lay out a process, with sequence, a time line, branches, conditional elements. Representing such a dynamic flow in text gives us some of the intricate cross-referenced texts law teachers drill their students on -- often, I might observe, with the help of a schematic or flowchart. Hypertext technology allows us to see that printed text [being flat, linear, static] is clumsy in its representation of process and dynamic relationship. Add color, graphics, and sound and you have vastly superior capability for representing diverse legal topics ranging from how a determination of eligibility for Social Security disability insurance should be made, through the resolution of competing priorities under Article 9 of the U.C.C., to consideration of entity alternatives for a start-up business.
A Point and Click Practice Guide from Social Security Plus
We will, I predict, see exciting experimentation in the use of interactive diagrams of law coming out of the current rush of commercial law publishers to CD-ROM. And government agencies should not remain forever stuck in observer status, limiting themselves to print bulletins, brochures, forms, and "regulations."
The static quality of printed texts severely limits their capacity to communicate changing law. The best printed codes provide a strobe-lit frame of the provisions in effect at a particular moment together with editorial notes that allow readers to assemble the set of provisions that applied to transactions, persons, events of a prior time or those that will operate in the future. In many legal areas, important current problems must be solved with "old" law. Planning for next year and beyond requires an eye on law to come. Imagine what it will mean to have code representation systems that can assemble the set of operative provisions in real time as a user pursues a problem.
Finally, there are numerous settings where legal rules are obliged or strongly pushed to describe a surface that is not flat, a line that is not straight, or a mathematical function that is non-lineal. Working with words and numbers performing basic mathematical operations, the results tend toward a clumsy compromise. Digital law can contain more flexible algorithms with accompanying representation of their operation.
Those governed by the law are "assumed" to know it. Perfect communication is hardly reality, but "ignorance of the law is no excuse." With varying degrees of acknowledged discomfort, we operate with fictions like assumed knowledge of the law and "legal notice," speedy trials, and fast-track agency review. And we deal with error within the system using after the fact reviews, that carry both delays and other costs that cause them to be underutilized.
Those who apply the law (judges and administrators) are in one sense held to the same standard, for to the extent their work is subject to review by higher authority, their interpretation or application or knowledge about the law can be upset without pause or deference.
Combined these two propositions pose serious risks to even the most conscientious citizens. Consider any one of several important legal regimes that have the following characteristics: an intricate set of rules that are changed from time to time, a large to enormous effected group with fair amounts at stake. (The set includes tax laws federal and state, farm subsidies, flood insurance guarantees, social security and medicare.) Such programs involve more than a rule promulgator, those affected, and a cast of adjudicators; they are implemented through agencies. Spreading legal information within a large and geographically distributed organization has in pre-digital times required training programs, supervision, spot checks or quality control monitoring, and massive manuals. The POMS or Program Operations Manual System of the Social Security Administration fills a large bookcase in my office and is regularly cursed by the member of our library staff who is responsible for keeping it up to date.
Most citizens have no alternative but to rely on a government agency or more accurately whichever one of its people they encounter to be both accurate and authoritative on questions involving "its" law. But, of course, systems fail and in most instances U.S. law today casts the risk of such failures on the citizen. In 1990, the U.S. Supreme Court held, in Office of Personnel Management v. Richmond, 496 U.S. 414, that a former civilian employee of the Navy was ineligible to receive six months of a disability annuity because he had exceeded the statutory limit on earnings -- even though he had done so only after seeking advice about that limit from Navy employee relations personnel and receiving assurance in writing that his earnings would not cause benefit loss. As it had in an earlier case involving Social Security, the Supreme Court ruled that "erroneous oral and written advice given by a Government employee to a benefit claimant" does not bind the government. When the initial error by a public law-applier leads to payments of an excessive amount or undercollection of tax the result is typically similar; the citizen bears the risk of errors of law within government agencies.
Through better information and communication it should be possible both to reduce the incidence of government error and, with better accountability, to increase the authority of front-line government workers to issue binding interpretations of the law.
The work of Shoshana Zuboff ("The Age of the Smart Machine" (1988)) and others strongly suggests that digital information technology has a corrosive effect on top down control within organizations. Information can be and therefore tends to be more widely distributed which invites non-managers to "a broader view" of the enterprise and a "deepening understanding" of their own tasks and roles. Thinking of this tendency in relation to public bodies rather than the financial institutions, paper mills, or auto companies studied by Zuboff, I see serious possibilities for "reinventing government." Top down, rule-based control, is the model on which we have constructed both industrial enterprise and the administrative state. It is what the phrase "rule of law" means to many. Recently, at a bookstore I saw: Philip Howard's "The Death of Common Sense" and Nicholas Negroponte's "Being Digital" side-by-side. For me the books are, indeed, related. I share Negroponte's optimism about digital technology and believe it permits, though hardly assures, government measures that are less rigid, compartmentalized, and hierarchical and facilitates more richly informed discretion. The layers, delays, departmental boundaries, and rigid rules against which Howard rails are, in my view, tightly associated with the use of print-based systems to communicate law.
An increasing fraction of the decisions of the U.S. Courts of Appeals (and indeed many appellate courts throughout the United States) are denominated "unpublished" and "non-precedential" by the deciding court. According to data from the Federal Judicial Center, the percentage of "merits dispositions" by Courts of Appeals that are "unpublished" climbed from 58% in 1987 to 66% in 1991. So long as the only effective distribution channel for the decisions of these courts were books published by the West publishing company, the decision not to publish effectively kept a decision the court thought of as adding little to established law from entering the legal information system. The on-line systems changed all that. A very high percentage of the "unpublished" Court of Appeals decisions are distributed in full text by LEXIS, all of them carrying warnings similar to that used for ninth circuit decisions: "THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R. 36-3."
By my calculations, 64 percent of the Court of Appeals decisions in LEXIS for 1991 carried such a label. Why does LEXIS load decisions that courts declare non-precedential and forbid parties to cite? Quite simply because those decisions have value to lawyers, albeit for a relatively short period of time. Lawyers are eager for any information that will allow them to read a court, not just the court's precedential opinions.
Finding appropriate means to provide consistent but equitable outcomes in a high volume adjudication system (whether judicially or administratively run) is a challenge that neither top down rule or precedent guided approaches address satisfactorily. Instead of pulling you into the details the of the U.S. Social Security disability determination process, I'll try to illustrate the point with the more widely visible issue of criminal sentencing. In the mid to late eighties, the U.S. was not alone in focusing on the serious discrepancies in sentencing outcomes that appeared when one studied or reviewed not individual sentencing decisions but decisions coming from all judges of a particular court over a period of time. Through great controversy and with equally uncertain success, the U.S. dealt with this problem by establishing sentencing guidelines.
In New South Wales, Scotland, and British Columbia a quite different approach relying on putting better information in the hands of those involved in sentencing decisions has been the subject of reform and experiment. New Sourth Wales offers the world a working model of this approach. A Sentencing Information System launched there in late 1990 provides several complementary databases to sentencing judges. Two contain law data of traditional sorts -- namely the statutory provisions laying out the range of dispositions and factors to be considered and appellate decisions dealing with sentencing. A third provides information on the availability of special facilities or personnel, relevant, say, to including assignment to a drug rehabilitation program as part of a sentence. A final "Penalty Statistics Database" is for our purposes the most interesting for the premise on which it rests is that the hundreds of thousands of sentencing decisions made by sentencing officers in New South Wales along with reasonably full offense and offender information viewed through effective statistical analysis tools and graphic display should be available to guide the judge's selection of an appropriate penalty in a particular case.
I predict that the future of legal information will include distribution of much more outcome data representing full populations of decisions, not just those explained by the decider in a form picked up for "publication".
The data on all dispositions in civil matters filed in the Federal courts recently opened to the Internet by Cornell's Legal Information Institute is suggestive in this regard, but incomplete as a model. While it offers new and exciting opportunities for statistical analysis -- comparing jury trials and bench trials for duration or plaintiff success, for example -- it provides no way to review outcomes by judge. For a brief time in the eighties the Social Security Administration kept outcome data on Administrative Law Judges deciding disability insurance and old-age and survivors insurance cases, which members of the public (including lawyers) were able to secure under the Freedom of Information Act. I foresee widespread implementation of the idea that adjudicators can and should be known by the pattern of what they do, not simply by what they write in explanation of some decisions. The perceived advantages that go with the knowledge of a decider's propensities obtained by repeat players and less reliably through hearsay suggest the importance of such information to litigants. I believe that we will grow comfortable with the idea that an independent adjudicator can, consistent with that independence, be reviewed on the basis of a pattern of performance not just in individual instances, evaluated in isolation, upon appeal.
Applied to agency rulings on individual cases this relates back to the earlier point about technology's push toward flatter but more effective administrative bodies.
Tax law changed dramatically in 1976 when, following rulings by the U.S. Court of Appeals for the D.C. Circuit and other federal courts holding that letter rulings were subject to the Freedom of Information Act, Congress added a new section to the Internal Revenue Code, 26 U.S.C. § 6110. It provides for access to such agency documents (letter rulings and technical advice memoranda) and their "background file documents" but also states that "Unless the Secretary otherwise establishes by regulations, [they] may not be used or cited as precedent." Id. § 6610(j)(3). Courts are nonetheless referred to them and do, on occasion, draw upon them for evidence of agency practice or interpretation. See Rowan Cos. v. United States, 452 U.S. 247, 261 n. 17 (1981). More importantly there is strong evidence the IRS itself seeks to use such rulings as an instrument of internal consistency. And in the light of that tax practitioners now routinely use them in providing counsel. What has allowed both agency and tax lawyers to use this unwieldy corpus of agency law is technology that arrived more or less with the prying of letter rulings from the IRS -- namely, digital storage, search, and retrieval. For over a decade, they have been available on-line, first on LEXIS and subsequently WESTLAW, as well.
"No action letters" by the SEC represent a similar phenomenon and an instructive information story. These letters (and the related interpretative letters) are written by the SEC staff in response to specific requests and indicate that on the basis of facts presented the agency will not view particular actions or transactions as falling within a statutory requirement to register. Being written by staff (and not the Commission) they don't bind the government, not even in the matter on which they were issued. See Loss & Seligman, "Securities Regulation" 524 n. 29. On the other hand, the Securities law literature stresses that they are not only honored by the SEC in the particular matter but trace the SEC staff's unfolding interpretation of registration requirements in gray areas. Important topics of securities law previously unclear have been mapped in detail through a succession of no-action letters.
These theoretically non-binding but practically highly reassuring letters come at a substantial cost -- delay. Yet they are sought and issued at a rate averaging well over 1,000 per year. To those who see law only in statutes, regulations, and binding agency or judicial precedent these do not qualify. The academic lord of securities law, Louis Loss, pronounced them: "ninety percent ... sheer, unadulterated, repetitious garbage." But to those counseling commercial concerns they constitute a valuable information asset. Where academic experts may see needless repetition, others find comforting company.
In pre-digital days, several large NYC firms doing high volume securities work created a pool of the no-action letters they had received for clients which they (the participating firms) but no others could consult in advising clients. Like the IRS letter rulings these were in time pulled into more public distribution, initially in a printed loose-leaf service, then through the two on-line services WESTLAW and LEXIS, and most recently on CD-ROM. (Except where confidentiality reasons force a longer delay, the letters are made available to the public 30 days after their issuance. 17 C.F.R. §200.81.) In the latter form particularly, they have become a widely used resource -- widely used and easily usable by those who are not themselves either repeat players with the SEC nor securities specialists. As an insurance company's general counsel explained to me recently -- having this material in digital form has allowed her office to give management swift advice about financing alternatives without having to turn to expensive outside securities firms.
Digital technology makes it possible for agency legal interpretations to be at once offered to those who seek reassurance in advance of structuring a transaction or employment practice and for such advisory rulings to be available to others needing to "read the agency" not just its formally promulgated policy. High stakes corporate tax and securities law issues provide the most highly developed examples of this approach, but opinion letters of the Labor Department's Wage-Hour Administrator dealing with Fair Labor Standards Act points suggest that the greater gains may be realized by extending it to lower stakes but widely recurring legal issues.
When the field of Artificial Intelligence and the Law first emerged as a discipline, it was digital science applied to a print-based activity. That reality is rapidly changing. The field's future is surely as a digital science applied to work carried out through digital information and communication systems. This transformation will be at once liberating and challenging.
One of the major limits on industrial strength AI projects has been the need for researchers to digitize law data required by their work. So long as AI researchers are prepared to go where the data is (i.e. allow their projects to be drawn to areas with digitized law data) that is or will soon be no problem.
As digitized law data proliferates there is a greater and greater need for intelligent agents to organize (and filter) it on the user's behalf. As some would paint the future scene we will all have software agents conscious of our ongoing information needs harvesting new material of importance to us and also ready to venture off on our bidding to acquire information pertinent to an arising need. But a more plausible future, certainly one for which there is great demand today, is for the agent's agent (tools that serve authors, editors, lawyers or judges).
As Kevin Ashley wrote in the introduction to "Modelling Legal Argument" : "Expert systems designers need to focus on improving a system's ability to explain its advice." Explanations are both critical to understanding the system's advice and a means of evaluating its quality. Expert systems must also focus on improving pre-advice communication, the interaction with the user that brings a problem or transaction or case into the system's solution space.
As an interested and friendly observer of the field of Artificial Intelligence and the Law, I see a deep tension in the field over whether it should be pure science or applied, despite the frequent assertions that it can be both. Some have abandoned the term AI altogether because of this duality. Douglas Hofstadter takes pains in his new book to explain why he now chooses to call his field "cognitive science" rather than artificial intelligence. Perhaps because law itself as a domain has long been comfortable with working theory and practice in joint harness, those doing A.I. and Law remain relatively optimistic about the connection between understanding and modeling legal argument and legal reasoning and building useful computer systems.
But that straddle, with its confidence that those goals can be pursued simultaneously, will become more difficult if, as I suspect, it develops that the more useful computer systems in law require a scale quite different from the individual human intelligence doing legal reasoning. The model underlying much AI work including that in law is of a computer system doing (to use the words of Marvin Minsky) "things that would require intelligence if done by a man." The serious limitation of that view, as I see it, lies in the greater value and opportunity for improving legal systems through better information and communication systems than through the construction of software that will simulate some portion of the functionality of individual lawyers or judges no matter how expert.
Finally, those working on A.I. and the law in university departments must fight off the habit of defining the field as bounded by the academy. It once was, but no longer. Unless A.I. work in law is carried out with full appreciation of all that publishers and governments are doing to deliver law effectively in digital form it will be increasingly irrelevant.
"Turbotax" Tax Preparation System
Four million Americans used software like this to prepare and review their income tax returns this year. Many them used it to file electronically or by means of the 1040 PC print data form. A definition of Artificial Intelligence that ignores the elements of expert system now showing up in commercial products and agency systems is a definition that denies AI a significant future.
Closer connections between those entities developing and deploying the new legal information technologies and those doing applied work in A.I. and the law is of mutual benefit. But in the current turbulent environment, they are not likely to develop spontaneously.
To recapitulate:
In conclusion I wish to acknowledge and thank our patron -- The National Center for Automated Information Research -- for sponsoring this forum, for supporting my Social Security CD-ROM project in its critical first year, and for furnishing the start-up funding that has allowed the Legal Information Institute at Cornell to explore the value of Internet and hypertext on disk as means of delivering legal information in new ways to old customers and even more importantly to a wide variety of new ones.
