The Social Life of Legal Information: First Impressions by Paul Duguid
The rapid development of digital technologies has given rise to numerous predictions about the future of the library and the university. Many of these predictions assume that both are, in essence, providers of information. The reactions of the law school and the law library to information technology present an interesting challenge to this assumption. The former has strongly resisted change, the latter has been quite transformed. The article suggests that this oddity cannot be explained in terms of information alone and offers instead an explanation in terms of practice, community, and institutions, ideas often missing from the manifestos of radical change. Failing to take these into account, proponents of change may actually be bolstering the very institutions that they seek to undermine, for the conservatism of legal education may in part help explain the radical transformation of the law library.Contents
The Paradox of the Paper Chase
Parsing Change
Learning and Law
Education and Institution
Commercial Providers and Legal Welfare
Libraries and the Lure of the Local
Conclusion
The Paradox of the Paper Chase
As someone with little knowledge of legal education, let me introduce my argument with a scene from that iconic movie The Paper Chase (1973), Everyman’s introduction to law school [ 1]. In the scene, two students, Hart and Ford, break into the law library to read the notes that their teacher, Kingsfield, wrote in 1927 when he took the course in contracts that, almost fifty years later, he is teaching to Hart and Ford. The scene brings together the law course and the law library, two pillars on which legal education stood firmly when the film was made. Considering this scene a quarter of a century later, it is intriguing to see how these two pillars have pulled apart. In what follows, I try to explore the implications for legal education of this separate and uneven development.
As the scene suggests, the notes Kingsfield took as a student are still transparent to his students, though half a century has passed since they were written. In the real rather than fictional world of 1970s law school, the scene appears to have been plausible. Cases cited would no doubt have had to be different, but the didactic approach was essentially unchanged. Moreover, at least some informed commentators would seem to agree that, were the film remade in 2001, that aspect of the scene would still be valid: the notes of 1927 would be intelligible to students of 2001. As Heise puts it, "The core of legal education appears to have proceeded through the Twentieth Century remarkably intact." Or as Berring reminds us, "First-year law students all over the United States still study the cluster of common law courses that [Harvard’s Dean] Langdell delineated" in 1870. Not only the subject matter, but also the place and the performance of legal education - the packed lecture room and the bow-tied harangue of cowed faces - have apparently survived [ 2].
On the other hand, were The Paper Chase remade in 2001, that other pillar of the law and player in this scene, the library, could not remain unchanged. At a minimum, a modern director would have (and would probably delight) to light the nighttime scene with eerily glowing computer screens or bouncing screen savers. Meanwhile, gloomier librarians might argue that, while students would still find their way through Kingsfield’s notes, many would not find their way around the library stacks in broad daylight, let alone in the dead of night. For today much, perhaps most, of a student’s search for information has moved out of the stacks and into dorm rooms and studies, via the Internet. Heise again notes, "It is already difficult to imagine a law library without Internet access" - and of course, once we do think of the Internet, it becomes increasingly difficult to imagine the place of the conventional library in legal research. While Berring writes, "The recent change in the world of legal information is so profound that it creates a generation gap between those who learned their skills before the change and those coming through the system now" [ 3]. Following the profound technological change that has occurred since this movie was made, then, one pillar, legal education has remained much as it was a century ago, while the other, supporting the law library and legal research, has been transformed in a generation [4].
This uneven development helps question conventional assumptions about education in the digital world. For these often lump libraries and schools together as "information providers" and assume that change in one will accompany similar change in the other. So, for example, IBM offered the following scenario in one of its series of ads "Solutions for a small planet":
We’re deep in the heart of the Apennine Mountains in Italy. It’s dusk; the sun is setting over a farmhouse tucked away by itself at the end of a road. There we spy the farmer, a retired man in his late 60’s, walking with his 25 year old granddaughter. In this particular corner of the world, it seems like things haven’t changed that much in the last 100 years. We move in closer so we can eavesdrop on their Italian conversation. Grandfather: Well, I finally finished my doctoral thesis. Woman: Way to go, Gramps! Grandfather: Did my Research at Indiana University. Woman: Indiana? Grandfather: Yup. IBM took the school’s library ... and digitized it. So I could access it over the Internet. She cocks her ear to take this all in. Grandfather: You know... It’s a great time to be alive.[5] Echoing conventional wisdom, as ads do, the scenario plausibly argues that, with the library online, problems of geographical distance, cultural distance, and educational disenfranchisement are more or less solved. Indeed, from the ad’s perspective, the physical library would appear to have been the barrier to most problems of higher education. Yet clearly, even with much of its conventional library resources on line, nothing like this has happened to law education. Pondering why reveals multiple, conflicting forces at work as the law school and the university more generally respond to pressure from digital technologies. Many of these forces, however, disappear in debates and projections about that response.
I attempt to bring some of these forces to light by first noting how this apparent paradox of legal education reminds us that law schools, libraries, and universities are complex systems, not simply information containers and conduits. We should not expect such complex systems to change as a single unit. Then, to explain some of the university’s complexity, I introduce a theory of learning - one which seems particularly congenial to legal education. I also point to some of the problems inherent in acquiring knowledge commercially. I use these arguments to explain why legal education might lag behind most other schools on a university campus in responding to digital technologies. And finally I suggest what law schools might learn from their libraries. For while law schools lag their campus peers, law libraries are in significant ways ahead of theirs.
Parsing Change
IBM’s ad exposes how easy it is to accept schools and libraries as little more than providers, repositories, conduits, purveyors, deliverers, and consumers of information. That accepted, we can conclude that as digital technologies offer more efficient means for storing, delivering, and even producing information, the school and the library will soon be superseded as outdated technologies [ 6]. Undoubtedly, schools and universities are heavily involved in information. Consequently, information technologies are undoubtedly changing them. But, as the contrary movements of these two pillars of the law suggest, the nature of that change cannot easily be read off from the technologies alone. Other forces are always at work. Moreover, as universities and the library are not indivisible units, but multifaceted social systems, myriad complex and often conflicting forces are at work both promoting and resisting change [7].
The book provides a useful (though undoubtedly limited) analogy. Mapping its future is difficult because, as Nunberg shows, the book is not a single entity [ 8]. The term, after all, covers diverse genres and subgenres including treatise, monographs, journals, case books, novels, religious texts, encyclopaedias, dictionaries, concordances, train timetables, car parts catalogues, and more [ 9]. While the book long bound these together, digital technologies are picking at the seams. Some (the concordance, the parts catalogue, and the timetable, for example) have found much more congenial digital forms. Others (the monograph and the novel) will probably stay close to the printed codex form for a long time. While yet others that appear quite similar appear to be following surprisingly distinct routes. For example, as Peter Martin insightfully points out, the encyclopaedia has almost certainly abandoned the codex form, nearly destroying the Encyclopaedia Britannica company and brand in the process (Martin uses this as a warning to the legal profession) [ 10]. Yet, intriguingly, Nunberg notes that some dictionaries are still comfortably codex bound: The desk dictionary thrives, providing lucrative income to several, fiercely competing publishers (including the Encyclopaedia Britannica company, which sells the Merriam–Webster’s Dictionary and others) [11].
To generalize may not always be, as Blake claimed, to falsify. But, as the differing trajectories of the encyclopaedia and the dictionary, though once both book technologies, suggests, it is important not to overgeneralize technologies [ 12]. Similarly, it is important not to overgeneralize information-providing and educational forms or the effects technologies will have on them. Rather, we need to parse the technologies and forms at issue to understand the different possible trajectories of change. Indeed, as I shall suggest in the body and conclusion of this paper, there is probably a greater need now, in discussions of education and technology, for splitting rather than lumping.
Learning and Law
It may be best to begin by parsing learning. Jermome Bruner’s work distinguishes what we might call learning about from learning to be [ 13]. The former concerns itself with picking up facts, data, information, not necessarily in usable form. We are always learning things this way. For example, since the death of Donald Bradman, I have had several conversations with Americans who read his obituary in theNew York Times and quoted his cricket statistics in awe while admitting that they had no idea what these figures signified. We are also always engaged in learning to be - developing, that is, our identity as a certain type of human being and the actionable knowledge that goes with that identity. These two aspects of learning, though related, are distinct. It’s easy for a person, for example to have conflicting information. But it is hard to think of having conflicting knowledge, for we assimilate knowledge to our personality and make it something we believe in and can act on.
What we acquire from learning about, then, can be entertaining but relatively inert. Many in the humanities can, in the spirit of C.P. Snow’s "two cultures", spout "f=ma" or recite the second law of thermodynamics. But most cannot use these in a way a physicist would, to interpret the world around them in ways recognizable by other physicists. That requires not just learning about, but learning to be a particular kind of person, the sort of person for whom that knowledge is integral and actionable. Similarly, after a round of hearings for a new justice, many of us can spout terms like stare decisis. But those of us not trained as lawyers have trouble making much sense of such terms (and little difficulty making a nonsense of them).
Learning about requires little more than cat-like curiousity, magpie-like acquisitiveness, and access to information. Learning to be requires much more. It is an intricate social process, one that involves introduction to and induction into a relevant practice, principally by way of a "community of practice" [ 14]. Consequently, it requires access not just to information, but to practitioners. The process of induction provides novices with implicit insight into membership, community standards, authority, forms of argumentation, and the like. In this way, learners come to understand what it is to be a member of this particular community, what the practice involves, how to think like other members, how to recognize other members, and how to be recognized by them. As a result of learning to be, learning about takes on greater significance. The facts, information, and data picked up about the practice that would be little more than trivia to nonmembers are actionable for those who have learned to be a member. Hence, among other things, educational forms may be different for those who are already members than they are for those who are becoming members or for members of other communities. Thus, having crudely parsed learning, we can begin to parse these educational forms. We should expect ways of teaching undergraduates to look different from ways of teaching graduates or professionals-as conventionally they do. The first tend to need extensive introduction to the multiple practices that make up a profession. The second tend to require more-intensive participation in a narrow selection of those practices [15]. This is why, as Adam Smith noticed, graduate education is in many ways close to an apprenticeship [ 16]. While the third often require only some learning about, the practice being already well inculcated. Consequently, we should also expect people to envisage different kinds of technology for undergraduate, graduate, and continuing education, which at the moment they often do not [17].
Law and Community
Talk of "professional communities" and "practice", often unfamiliar ideas for laymen, involves little more than commonplaces for most lawyers. They are not, however, quite commonplace in discussions of legal education and its transformation. In general, only one side - the hesitant side - seems willing to raise these matters. For example, in expressing her doubts about the Concord law school, Justice Ruth Bader Ginsburg implicitly invokes a sense of legal communities of practice,
"So much of legal education - and legal practice - is a shared enterprise, a genuinely interactive endeavor. The process inevitably loses something vital when students learn in isolation, even if they can engage in virtual interaction with peers and teachers. I am troubled by ventures like Concord, where a student can get a J.D. (though the school is still unaccredited) without ever laying eyes on a fellow student or professor. We should strive to ensure that the Internet remains a device for bringing people together and does not become a force for isolation" [ 18].More explicitly, Robert Thomas talks of the "insidious loss of community" at the hands of online communication. Thomas goes on, "being a lawyer, thinking like a lawyer, is an intensely human enterprise" (as, I would add, is becoming a lawyer) [ 19]. More significantly, the demands of community are offered by the ABA as a reason to resist "correspondence" education, even in its modern digital guise:
"During a law school education a student is expected to participate in a learning community whereby he or she will ultimately learn, experience, and develop skills and knowledge ... law school experience involves interaction with faculty not only in the classroom, but also in other places and at other times. Students also learn from each other by inquiry and challenge, review and study groups" [ 20].This last point is worth emphasizing. Law school is not simply a matter of acquiring legal information. It involves joining a cohort, both for epistemological reasons, as I have suggested, and for more broadly social ones. The latter may as easily be overlooked as the former. The great business historian Alfred Chandler, for instance, suggested that American businesses began to outperform European (and particularly British) rivals because the managers of the former were trained in business schools while the managers of the latter continued to be trained on the job. Chandler suggests that the former managers were introduced to superior information and the latter suffered competitively as a result [ 21]. It was probably as important, however, that in these schools the nascent managers were introduced to a cohort that, when they left business school and embarked on on-the-job training in the workplace, would develop into an extensive, well connected network, providing information and useful contacts for its members. The European counterparts, by contrast, never had the opportunity to form a cohort and remained comparatively isolated within their particular businesses [22].
In all, legal education is a complex process of socialization [ 23]. Indeed, in encounters with the law, lay people may have to go through a remarkably intensive and often visibly transformative education through socialization. We see this in the workings of a jury. In elaborate jury trials, a jury of lay people has to be inducted in a remarkably short time into the complexities of law, evidence, and judgement even though their purpose is only to rule on matters of "fact." The highly specialized context of the court - and juryroom provides a powerful "situated" means for this sort of induction. Here a community is forged in practice. As evidence of how such intense, collective learning can be transformative, we can note how juries often reach conclusions that, transparent and justifiable to the community’s members, are opaque and even infuriating to outsiders who have not been thus socialized. (This sort of socialization brings to mind observations of the British theatre director Richard Eyre, who notes how in great theatre performances people tend to enter as individuals but leave as an audience, having developed a collective identity in the process [24]).
Curiously, those who would change legal education tend to ignore these communal and social aspects, or to pay them little more than lip service. For example, the reply to Ginsburg from Jack Goetz, Concord’s dean, shows little insight into differences between community building and simple contacts:
"The reality is that many law schools still have first-year classes of 70 or 80 people in which a student has very little interaction with the professor. Concord students can communicate with their professors via e-mail or telephone, and get to know their classmates through online discussions" [ 25].This reply makes technology seem, socially, like very thin gruel. Similarly, though the 1999 CALI conference was boldly titled "Communities, Collaboration, and Communication", a quick scan of the 55 sessions posted on the Internet suggested that few of the proponents were much interested in the issue of community.
This is not to say that the role of community cannot be addressed by proponents. Far from it. Technology is at its most powerful in service of social ends; at its weakest in opposition to them. Some of the most successful distance and asynchronous education institutions and methods have community formation at their core. Britain’s Open University, open universities more generally, and recent experiments such as Pepperdine University’s doctorate in education, place community formation and the social aspects of education at the centre of their evidently successful endeavours. Similarly, the role of a community of peers helps explain the remarkably robust results of Tutored Video Instruction (TVI) - results that could lend some useful explanations for the work on video-supported teaching in law [ 26]. In general, however, many proponents of change in legal education seem as disinclined to look to other fields for guidance and support as they are to discuss these intricate social issues. Instead, they look at the world through the highly constricting tunnel of technology and the limiting paradigm of delivery. Legal educators thus risk not merely reinventing the wheel, but reinventing a rather square wheel. Meanwhile other educators having understood the merits of the round wheel, have moved on to the complexities of the axle and the differential. And, to shift metaphors, in avoiding questions of community, those in favor of digitally supported legal education cede the best tunes to their demons.
Law as practice
Notions of community tend to meet resistance from those who see learning as a solitary, individual act. Equally, the idea of practice as a key factor is resisted by those who think of practice as rote behaviour. In law, such misunderstandings should not present a problem. As the title of the television programme The Practice alone suggests, law is widely accepted as a practice, as, that is, a distinctive set of behaviours shared by people as part of sharing an occupation. Becoming a practitioner involves acquiring those behaviours. And these cannot simply be imparted as a set of rules. For practice, here as elsewhere, stands to prescriptions or rules, as the informal is to the formal, and the tacit to the explicit. It is their necessary, but distinct companion. Their unacknowledged but ever-present shadow [ 27]. For practice does not reduce to rules. Rather, it is the complement to rule learning, allowing the rules learned to be put into play.
In such explicitly rule-governed arenas as the law, practice is particularly important but also particularly contentious. When a reliable cook insists on bending the rules, no one need worry too much. Certainly, most other cooks know that you cannot cook without bending (or at least interpreting) recipes. Such tolerance is more problematic in the law. Yet, as Justice Holmes insightfully wrote, "the machinery of government would not work if it were not allowed a little play in its joints" [ 28]. It requires a finely attuned sense of practice to recognize what is and what is not acceptable as fair play in putting the law into practice. Because law is inevitably social, the learning required must be a social activity, engaging with shared implicit understandings of practice as well as shared explicit understanding of prescription [29].
There is inevitably significant tension between practice and prescription, for each limits the amount of deference that can be paid to the other [ 30]. And in negotiating such tension, law schools and schools in general play a particularly important part [ 31]. Clearly, the part they play cannot simply involve more prescriptions - this time prescriptions about practice - yet this is what many alternative methods of delivery offer. Rather, law schools are places where the implicit assumptions of practice, while (inevitably) never explicit, are nonetheless on display in the actions of practitioners, who reveal the "play in [their] joints", often despite their best intentions [ 32]. Consequently, in trying to redesign it, we need to understand law school not merely as a means to deliver information, but as a social institution always struggling to balance practice and prescription.
Education and Institutions
As the example of the book above suggests, information technologies are good at unbundling systems that prior technologies preserved as bundles. While many talk of digital convergence, to date at least, divergence, the differentiation of different practices and genres, has been quite as important. Educational institutions are particularly intricate bundles, many of which seem ripe for unbundling. But unbundling is not always as simple as it might seem to those who advocate it. Social systems are, for instance, much more than the sum of their parts. Moreover, what seem to be constraints, may often turn out to be inseparable from resources. The world may be going digital, but it is not, therefore, necessarily binary.
Here the Human Genome Project offers a useful analogy. That was founded on Watson and Crick’s belief that DNA makes RNA which in turn makes protein. Consequently, it has been widely assumed that information in their DNA ultimately maps onto the behaviour of complex organisms. Recent results from genetic research in and outside the Project are starting to put Watson and Crick's premise and these subsequent assumptions in doubt [ 33]. As the geneticist Richard Lewontin has argued, "the organism does not compute itself from its genes" [ 34]. Stephen Jay Gould elaborated this point in his reflection on the surprising discovery that highly complex Homo sapiens did not have proportionally more genes than the simple earthworm:
"The key to complexity is not more genes, but more combinations and interactions generated by fewer units of code - and many of these interactions (as emergent properties, to use the technical jargon) must be explained at the level of their appearance, for they cannot be predicted from the separate underlying parts alone. So organisms must be explained as organisms, and not as a summation of genes" [ 35].Similarly, beneficial institutional effects cannot be traced directly to their constituent pieces in the bundle, while harmful ones reduce to different constituents. Institutions, too, have elaborate systemic effects and emergent properties. Consequently, beneficial aspects of institutions may not automatically survive radical decomposition.
Those most heavily disenchanted with the conservatism, smugness, and general insularity of today’s educational institutions may well ask whether there are any beneficial institutional effects to worry about. (Proponents of change in legal education often project themselves as radical iconoclasts acting on behalf of the disadvantaged. Not all are.) There undoubtedly are beneficial aspects. But some of these may be almost inseparable from the detrimental ones [ 36]. If so, radical unbundling, tempting and possible as it can seem, may, at best, do no more good than harm. Careful unbundling, by contrast, will need a better understanding of the institutional issues than simple demonization suggests and than much of the literature proposing change in the law school seems willing to engage.
In The Social Life of Information, John Seely Brown and I argue that two of the essential functions of the university involve the provision of access and of degrees [ 37]. These are not always seen as benefits. Often, they are denounced as gatekeeping and credentialling, mechanisms that have historically involved universities in the reproduction of social elites rather than egalitarian education [ 38]. Gatekeepers accumulate power. It would be foolish to deny this and simple truth to acknowledge that universities and other educational gatekeepers such as the ABA often have and probably will continue to abuse this power. Changes that wisely limit this power must be welcomed. But it is equally foolish to underestimate whence that power comes. Gatekeeping and credentialling have a positive side. Simply abolishing them may not only be difficult, but actuallydamaging to egalitarian goals.
The positive side responds to the difficulties in markets for knowledge outlined by Kenneth Arrow. Developing an argument that goes back at least to the Meno, Arrow argues that the problem with such markets is that, if you can assess the knowledge on offer (or its purveyor), then you probably don’t need to buy it. Conversely, if you need to buy it, you probably can’t assess it. If, for example, you need a lawyer, then you probably lack the skills to tell whether the one on offer is a good lawyer. If you can make that assessment adequately, then you probably don’t need the lawyer. Institutions, Arrow argues, address this paradox. They allow people to buy and sell knowledge reliably. They work by limiting the number of legitimate sellers in the market to those who have shown evidence of having the knowledge to sell (hence the gatekeeping), and by providing them with certificates of legitimacy (hence the credentials). So, when you go to buy a lawyer’s knowledge, your are implicitly helped by degrees and diplomas from universities, the ABA, and other legal institutions. These stake their reputation on the likely adequacy of that lawyer. It’s not a perfect market, by any means. But to a significant degree it keeps out shysters, and those who are in meet minimum acceptable standards [ 39].
Such warrants don’t only allow people to buy knowledge and professional services. The ABA also helps learners acquire that knowledge by providing warrants to distinguish worthwhile academies from diploma mills. The academy in turn provides warrants for their students to get jobs based on their knowledge. However inefficient this market is, it would probably be worse without this sort of warranting. Certainly, few people seem able to offer an alternative approach. New educational providers rarely do. Most rely on the warranting power of the very universities they are used to denounce. UNext, Pensare, and Fathom have wisely allied themselves with well-known schools, which, while solidifying their business plans prevents them from becoming the sorts of iconoclasts that anti-establishment proponents would like them to be.
Alliances, explicit or implicit, in the law may be particularly problematic. The United Kingdom’s Open University, which has reliably established its own warrants in other fields, relies on another teaching institution, the College of Law to validate its law offerings. And in the United States, Concord makes it emphatically evident that Arthur Miller and the material in his courses has Harvard certification (much to Harvard’s dismay). Harvard, by contrast, can afford to be much less assertive about the background of its own faculty and courses. There the warrant is implicit. So the lower it is in the tier system, it would seem, the more an institution may depend on higher tiers for validation. This makes plausible Heise’s argument that radical change may actually "result in the calcification of law school ‘tiers’", not their eradication [ 40] Iconoclasts that offer to threaten the old establishment may end up bolstering it.
The examples of UNext and Pensare remind us, nonetheless, how law schools lag other professional schools and other disciplines. True, more adventurous law schools are already looking with interest over the shoulders of business schools to see how to achieve this sort of partnership. But more generally, as Danner puts it, "Distance learning markets for law comparable to those for business education remain to be developed and in general law schools are only beginning to consider the possibilities seriously" [ 41]. Conventionally, this is blamed on the ABA’s distaste for "correspondence" education. Yet, whatever the limitations and interests of the ABA, the roadblock it presents may well prove impassible until those who would pass it do not just denounce it, but directly address the issues its "Temporary Guidelines" raise.
Furthermore the ABA may be too easy a villain. There are undoubtedly others. For example, if alternative providers cannot deal with the warranting problem other than by leaning on their more established competitors, they cannot be surprised if those competitors refuse to offer them this crutch, particularly if the iconoclasts are deliberately antagonistic. Of course, the less antagonistic these new competitors are, the less iconoclastic they are likely to be, so the less likely fundamental change may become. Here part of the problem may be the digital age’s obsession with replacement or supersession [ 42]. Some of the more profoundly innovative moves in higher education over recent decades, such as the Open University, developed by offering complementary opportunities rather than rival ones. From another direction, Perritt suggests that lack of time, inclination, or opportunity to use digital media are significant forces of conservatism [ 43]. Certainly, some notable exceptions aside, law schools seem to be having trouble using new technologies and new methods internally. If so, before sketching grand plans to reach across cyberspace to new students in untapped "markets" and blaming others for failure, they may first need to address the issues involved in putting their own houses in order [44].
In all, despite jeremiads and Cassandra-like warnings that law schools must change or die, that law professors are dinosaurs staring at the comets that will render them extinct, and so on, the core of legal education seems profoundly unchanged. We can certainly trace some of this resistance to the usual suspects, denial, entrenched interests, institutional inertia. But some resistance arises in the limited vision of those who propose change. While asking others to accompany them to a new institutional future, they seem unable to raise their eyes, not so much to the meteors, but even beyond the level of the classroom. With this obsessive focus but limited vision, they are ill equipped to deal with the complex institutional issues that profound change demands [ 45]. Not only are the revanchists old fashioned, I am arguing, so are many of the revolutionaries. They still talk in grand, iconoclastic, information-centred terms that other pioneers of campus reform have long abandoned.
Commercial Providers and Legal Welfare
Here we can usefully return to the contrast with which I began: the contrast between the law school and the law library. If law faculty are reluctant to look outside for inspiration, they could look within, looking from the unchanged pillar of their establishment to the utterly changed one. As I have been arguing, alternative modes have made very few inroads in classroom legal education. Conversely, there is probably nowhere on campus where digital technology and commercial providers have penetrated so far into the academic mission than the law library. The transformation of library services provides helpful models for the rest of the school, particularly in the symbiotic relationship with commercial vendors.
Across the country, schools are deciding what services and which courses to keep "in house", and which to farm out to other, often commercial, providers. Low earners are easily let go. Institutions generally have little loyalty to courses like French Conversation, which free lancers offer quite efficiently without the burden of overheads [ 46]. Larger commercial vendors are interested in more high-earning courses, which they offer at lower cost and lower overheads with consequently greater profits. This unbundling presents a version of Sorites paradox as people try to decide how much they can spin off and still keep a viable bundle. The precise tipping point beyond which "a little more than a little is by much too much" and a department is no longer viable may be hard to discern in advance. In law libraries, with vendors increasingly engaged not only in the provision of information, but in legal writing and research, some are worried that already too much has escaped for them to retain their integrity and purpose. Others, meanwhile, are still looking for more to take away.
As I have tried to suggest, with complex systems, it isn’t so much the nodes that disappear unnoticed and unaccounted for, but the less tangible stuff that lies in the system’s interstices. Missing from many discussions of unbundling is the contribution of law schools to social welfare and public goods. As we saw, the ABA’s "Temporary Guidelines" note that "during a law school education a student is expected to participate in a learning community whereby he or she will ultimately learn, experience, and develop skills and knowledge that will advance the legal system, society and his or her career" [ 47]. In serving individuals’ careers, law schools have generally managed to serve the "legal system" and "society" both directly and by default. The interstices of law schools have made the ethos and the implicit ethics of practice (as opposed to explicit ethics courses) available. There appears to be little discussions of how alternative forms will provide these important intangibles.
Those with a low opinion of the law might think of these as the hard-to-find contributions of law school (though they may be even harder to find without them). We need also consider the hard-to-fund contributions schools provide. Again, alternative modes and alternative providers give little insight into how or whether leaner institutions will fund theoretical investigations or secondary literature, currently supported by cross subsidy within law schools [ 48]. Claims that the leaner organizations will do everything better as well as cheaper sound a little like someone offering to run as far as he can as fast as he can [49].
In the case of the library, the alternative vendors (primarily Lexis-Nexis and Westlaw) seem to be under relatively little pressure to provide or subsidize public welfare. And here law schools (and the ABA) may themselves be complicit. The profession has ceded quasi-monopoly control to the two main providers. Schools have given them unfettered access to students, allowing the vendors to teach their particular research methods (in the process taking over much of legal writing and research education). Vendors provide these for next to nothing, but such provision is hardly a gift or pro bono act. Rather, it is a shrewd and significant loss-leading investment that results in long-term, high returns by tying future lawyers to particular systems. Of course, as I heard a representative of Westlaw protest recently, monopolies are not necessarily bad. Indeed, monopolies built around intellectual property are one of the few that Adam Smith tolerated. But in granting monopolies, societies usually ask for some form of public welfare compensation. Intellectual property holders, for example, must concede limited terms, fair use, and first use. Control of parts of the airwaves comes with obligations to public service broadcasting. But the quasi-monopolistic control ceded to the private vendors of legal information seems to engender little by way of return. Possible public obligations might include access to vendor databases from public or prison libraries or in the offices of attorneys general and their subordinates. Those more familiar with the law can probably think of alternatives.
But my overall point here is more general: the way in which library services have been unbundled and spun off without much deference to public welfare provision may signify that, in contemplating further transformation, schools are paying too little attention to this sort of provision. As Lyman notes, schools stand at the point where gift economy and market economy meet. If they surrender too readily what is viable in the market economy, they will soon discover that they cannot support their contributions to the gift economy. Goods in gift economies are not, that is, absolutely free. Most are supported not in the market (hence they appear as gifts) but through market externalities [ 50].
As change washes through the university in the wake of the digital revolution, the danger that for-profit vendors will cherry pick what is lucrative and leave not-for-profit providers holding only the public welfare role of academia is always possible. Of course, foresightful vendors may themselves see that this is an unsustainable model. They cannot rely on the not-for-profit sector to provide unimpeachable warrants and to accept vendor-provided incremental credits towards a degree while simultaneously wringing the neck of this goose that lays such useful eggs. But universities and institutions like the ABA must themselves be more assertive in their own interest. They may have, for example, to demand fees in accepting credits from low overhead providers in order to fund the high welfare (rather than profit) overheads that they have been left with. Libraries, too, which both suffer and succor in similar ways, may need to be more demanding with their vendors in order to survive. At present, the pressure of demands seems to run all in the other direction.
Libraries and the Lure of the Local
But should physical law libraries survive? In law firms and corporations, they are already shrinking ("Ours is now confined to a closet," one corporate special librarian told me.)[ 51]. And if they should survive, can they as anything more than a repository for those things too unprofitable for vendors to sell or a guardian for those things too ephemeral for digital libraries to preserve [ 52]. If libraries are simply warehouses and conduits for information, then justifying them will be hard. But they are surely more. In particular, they both develop and provide interpretive frameworks and even warrants for the documents to which they give access. And in this role may become more rather than less important in the digital age.
Their contribution to interpretation tends to get little attention because digital enthusiasts have generally avoided the topic of interpretation in favour of discussions of access, which is their great strength. They portray not only libraries as conduits and warehouses, but documents as little more than "information sprayed on paper". Interpretation and meaning appear as somehow unproblematic, self-evident, or transparent [53]. Unfortunately they are not and deserve much more attention. Theorists of human communication have long argued that meaning is not universal, but limited to particular "interpretive" or "discursive" communities. Consequently, whatever transparency documents might achieve is also limited to such groups. Development, support, and entry into such groups are then matters to pursue, not take for granted [ 54]. Such a claim is not an attempt to return to a cabalistic priesthood interpreting the law for the layity. But libraries provide a route through which the uninitiated cannot just find, but find meaning in the law.
The Web has undoubtedly helped find law. And where "ignorance is no excuse," it is morally essential to use Web technologies to spread legal information as widely as possible and to achieve transparency in as broad a community as possible [ 55]. But how much does the Web contribute to finding meaning? It certainly provides listserves and chat rooms and connections that can provide social help for interpretation. But it also can foster the illusion of transparency, and fostering transparency where it does not exist or is hard to achieve is deceptive and potentially destructive. I shudder, for example, for the pro se litigant reflecting in the New York Times on his deposition by a group of corporate lawyers,
"I wasn’t intimidated by any of them by then. I mean, I’d watched the O. J. trial and learned a lot" [ 56].A little learning - and a lot of information - may indeed be dangerous things. The problem extends well beyond pro se litigants. As Martin notes, "a client with more legal information may be a client with a very strong but mistaken view of the law" [ 57]. Doctors, too, confront patients better instructed by MEDLINE in the details of their disease, putting those doctors (particularly those who would still play the high priest’s role) at an unfamiliar disadvantage. Nevertheless, the doctors still get important advantage (or utility) from their systemic understanding of the complexities of human organisms, and, of course, their experience. Lacking these, patients may make damagingly wrong decisions for all the superior information they have. Web pages and information more generally have difficulty providing such systematic understanding, particularly that part which is based in practice. Even the intensive socialization of the jury that I mentioned earlier offers little insight into the law as a larger practical system. The public may now be in a very good position to learn about the law, but that does not necessarily enable them to be effective lawyers. Providing the public information to help engage effectively is a social obligation. Intimating that all such information is unproblematically transparent is socially irresponsible.
Such intimations are now well received because, as Berring argues, law has suffered profound loss of interpretive authority. "We no longer live in a universe where absolutes can be discovered through judicious reading of common law precedents" [ 58]. Some of this decline of authority reflects changes in the profession. (Berring points to the numerous recent 5-4 decisions on the Supreme Court.) But a good part reflects changes in technology. As both documents and ways of reading have changed, it has become harder to impute authority to the text - even in order to wrestle with it. Consequently, it is harder to distinguish on face value the useful and reliable texts from the unreliable. Conversely, the stability that paper, print, and mechanical reproduction gave to texts did help impute authority and make such distinctions [ 59]. Indeed, these were important corollaries of print. They allowed interpretive communities that relied on that authority to grow from predominantly face-to-face communities (where the authority had to be present) into widely distributed "invisible colleges" (where authority was mediated through artifacts). In the process, these artifacts and communities helped enable modern science [ 60]. It is becoming increasingly clear that this argument, while right overall, significantly overdetermined the role of technology. As Adrian Johns has shown, it took time for such authority to develop. It was not a simple outcome of the book as an artifact, but rather a more complex techno-social process, involving the development and stabilization of interpretive strategies and communities over time. Books, as Milton argued (in terms familiar to the law), were put on trial and reaching collective judgement about how they should be read and interpreted involved social deliberation [61].
If, as many like to claim, we are involved in a communications revolution of similar proportions to the advent of print, we are undoubtedly still in the period of electronic incunabula. Consequently, we too are facing a period in which the conventions of interpretation and meaning are significantly underdetermined. As Johns’s work suggests, it will be a period of diverging strategies, transient conventions, conflicting interests, community formation, dissolution, and reformation, and constant, implicit social negotiation. These, writ large, are the symptoms Berring insightfully detects and which make the search for "new sources of legal authority" both necessary and problematic. Berring, modelling his ideas on Blackstone’s Commentaries, envisages in particular a return to "individual authority" [ 62]. As I have been trying to argue, I think forms of communal authority will be more important. It is interpretive communities that construct shared categories and, through these, allow social communication and coordinated practice around information.
Innumerable sites give rise to such communities. One particularly important one, as Danner and Lyman both note, is the library. "The digital library", the former notes, "is generally conceived of only as an information resource, as if the library were only a collection, rather than as a shared intellectual resource and site for a community". "In responding to the challenges of supporting distance learning initiatives", Danner concludes, "librarians must be careful not to concentrate too much on what they can do to facilitate access to information and too little on the role that the library has traditionally played in developing and nurturing a sense of community" [ 63]. We also need to note that libraries, like books, play an important role not just in nurturing, but in indexing and discriminating among communities. That is, like books, they allow readers an insight into the community in which and for which particular texts were constructed. Unlike books, which tend to address one particular interpretive community, libraries bring together works from multiple communities. In so doing they imply that different books should be read differently and provide intimations of how particular books should be read. Libraries and librarians then help readers faced with the information overload and its antecedents (which accompanied the book, if not the library, through history) implicitly parse these different genres of communication [ 64]. If we lose the library as a physical place, we may lose these unnoticed resources - resources which even digital libraries may unwittingly depend on to work.
Let me offer an analogy. At Xerox PARC, talks by visiting specialists on a variety of topics have long provided a vital source of new knowledge for the researchers. A few years ago, it was decided that some would find it convenient if the talks were simultaneously Webcast on PARC’s Intranet. At first, the new system worked fine. Consequently, live audiences dwindled as more people logged in to the talks from their desktops. As they did, the interdependence of the old and the new mode slowly became apparent, because the talks, often on esoteric topics, became increasingly hard to interpret, for speakers unconsciously respond to cues from a live audience and these were now missing. They found it much harder to deliver to an almost empty room, whether or not dozens were listening in. Not only is it hard to build enthusiasm in response to an echo, but it is impossible to "repair" misunderstandings or to emphasize points that are not getting across if "across" now involves a TCP/IP connection to isolated listeners. Moreover, audience members lacked any sense of how the talk was going down with their peers and at what points more expert colleagues nodded at with enthusiasm. Cues for attention, like laughter or furious note taking, were all absent. Luckily, by the time these problems were understood, the auditorium had not been knocked down as surplus physical space.
One conclusion from this story is that we tend to underestimate the importance of place and co-location to the sharing of knowledge. So I suspect that, for those entering professions like law and for those pushing at its disciplinary frontiers, not only will the library remain important for its skill at collecting, and perhaps more importantly selecting, parsing, and categorizing established and new genres. But in fulfilling these tasks, it is likely to remain important as a place, literally, that inherently supports and bridges diverse interpretive communities [65].
Indeed, I would argue more speculatively that as we lose the stability that the printed codex provided to the wonderful flexibility of the digital text, and as we also loose the residual understanding of those artifacts which implicitly underpins much of our interpretation in the digital world, it may well be that libraries will become more important, not less. For if stable communicative artifacts allowed communities to spread apart with relative indifference to place, unstable ones, if they make reliable communication trickier, may temporarily at least bring them back together [ 66]. As libraries develop into virtual portals, providing order among the proliferating information in the digital world, they may paradoxically reinforce their role as physical portals into the world of professional knowledge [ 67]. It may prove a very bad investment to knock them down, pack them into cupboards, or scratch them out of new institutional plans.
But for law schools and law libraries, there is a further conclusion to draw. The schools, I have suggested, have remained remarkably unchanged, the libraries have been remarkably transformed. These two trajectories, radically diverging though they may seem, may not be independent. It seems reasonable to believe that the law library could go on its pioneering path because its dominant user group came from a heavily socialized, practice-based community. Those tradition-laden classrooms, this suggests, have enabled innovation in part by releasing the library from some of its community-forming obligations. The library and its vendors have, to a significant degree, turned those into externalities. But if that is the case, the libraries, too, may find they have an investment in the conservatism of the law school. Conversely, if the law school wants to change, the library may have to take up some of its old socializing responsibilities.
Conclusion
Champions of digital education have often survived many years of dismissal or contempt. Therefore, some have difficulty realizing that the battle for which they have fought has essentially been won. Education is being radically and irreversibly transformed with the help of digital technologies. We cannot, nor should we want to go back. The only significant question is how do we go forward.
Unfortunately, some who have fought in the wilderness for so long tend to hear any criticism as thorough opposition. Too great a sacrifice may have made a stone of their hearing. To question one digital approach is, for them, to question all. Those who are not wholly with them are taken to be against. But with the victory won, guerrilla-band unity is no longer admirable. In the past few years, across campuses 1,000 flowers have bloomed in a wild array of spontaneous digital experiments. These will be most useful only if we are prepared to distinguish the viable from the fragile, and the good from the bad. Now, we need less cheerleading and more constructive critique. That is what I have tried to offer here. As it has generally lagged changes elsewhere, law stands in a position to engage in a profitable cull, learning from other’s failures and successes. At times, however, it can seem as though it wants to begin planting all over again on its own. It can also seem eager to reap the earliest blooms, ignoring later, more sophisticated grafting.
Less metaphorically, change has been pushed too heavily from the narrow perspective of information and its delivery. This perspective almost inevitably leaves out questions of learning, meaning, interpretation, communication, and community that are central to understanding both change and inertia - and, to end where I began, that help explain the paradoxical movements of those two pillars, the law school and the law library. Giving more attention to these matters should help make the former powerfully much more virtual and the latter, perhaps, powerfully a little less so.
About the Author
Paul Duguid is Visiting Professor at Copenhagen Business School, Department of Organisational and Industrial Sociology, and Research Specialist in Social and Cultural Studies inEducation at the University of California, Berkeley. For the academic year 2001-2002 he holds a fellowship from the Center for the Public Domain. From 1989 to 2001 he was a consultant at the Xerox Palo Alto Research Center. Prior to that he was a member of the Institute for Research on Learning. His interest in multidisciplinary, collaborative work has led him to work with social scientists, computer scientists, economists, linguists, management theorists, and social psychologists. His writing has appeared in a broad array of scholarly fields and journals including anthropology, business and business history, cognitive science, computer science, design, education, economic history, human-computer interaction, management, organization theory, and wine history. Duguid has also written essays and reviews for a variety of less specialized publications, including the Times Literary Supplement, the Nation, and the Threepenny Review.
E-mail: duguid@socrates.berkeley.edu
Notes
1. My only qualification for writing this paper may be my complete lack of qualifications, for my dealings with the law and lawyers have been few. Perhaps I (but not my readers) can draw solace from Lady Bracknell’s belief that "Ignorance is like a delicate exotic fruit." She goes on, of course, ""Touch it, and the bloom is gone". To the extent that my bloom is gone, I am grateful for the gentle touch provided by the participants in the conference, "Not a Box but a Window: Law Libraries and Legal Education in a Virtual World", University of Toronto, 23 February 2001, and especially Jim Hambleton, who gave me an intensive education in aspects of the practice of law. I am also grateful to Geoff Nunberg, Sarah Cunniff, Bob Berring, and Pam Samuelson, as well as John Seely Brown, with whom many of the ideas here were developed.
2. Michael Heise, "Closing One Gap But Opening Another?: A Response to Dean Perritt and Comments on the Internet, Law Schools, and Legal Education," Indiana Law Review 1999, 274–290, p. 284; Robert C. Berring, "Legal Research and the World of Thinkable Thoughts," Journal of Appellate Practice and Process 2000 2(2): 305–318. See also Robert E. Oliphant, "Will Internet-Driven Concord University Law School Revolutionize Traditional Law School Teaching?" William Mitchell Law Review (2000) 27: 841–878, p. 841: "Faculty and administrators appear comfortably entrenched in an environment that functions, in many ways, much as it did a century ago".
3. Heise, "Closing One Gap", p. 278; Berring, "Legal Research", p. 305.
4. For the unchanging nature of the classroom see Peter W. Martin, "The Internet: ‘Full and Unfettered Access’ to Law — Some Implications," Northern Kentucky Law Review 1999 26(2): 181–209; Nicholas P. Terry, "Bricks Plus Bytes: How ‘Click–and–Brick#146; Will Define Legal Education Space," Villanova Law Review, 2001 46(1). For the profound change in the library see Berring, "Legal Research"; Richard Danner, "Facing the Millennium: Law Schools, Law Librarians, and Information Technology," Journal of Legal Education 1996 46: 43–58. Michael Geist notes both aspects of this uneven development within the law, see Michael Geist, "Where Can You Go Today? The Computerization of Legal Education from Workbooks to the Web." Harvard Journal of Law & Technology 1997 11: 141–183. Geist writes, "Although the two major computer–related legal ventures began at roughly the same time, their respective impact has thus far been significantly different. The more successful venture, computer-assisted legal research ("CALR"), today has spawned two major legal online services, LEXIS and Westlaw, and is seen as an indispensable part of lawyering and legal education. The less successful venture, CAI [Computer Assisted Instruction], has thus far played a relatively minor role in legal education despite the fact that it has been the focus of considerable energy from many legal educators and institutions." Geist doesn’t, however, explore why they have developed so differently. Instead, he goes on to argue that CAI is poised to take off. Four years later, it seems still only poised and it remains important to ask why.
5. See "A farmer’s supposed to dig in his home sod - not burrow through libraries half way around the world", http://www.ibm.com/sfasp/locations/italy/index.html [visited 21 July 1999; unavailable 15 March 2001].
6. Similar arguments can be made about technology and the practice of law. Some enthusiasts suggest that expert systems may replace lawyers. I do not address that nor other ways in which the law itself is changing confronted by digital technology. On these topics see, for example, Ethan M. Katsh, Law in a Digital World (New York: Oxford University Press, 1995); James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996); Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).
7. Reading change from technologies, technological determinism, is a tempting approach. It seems to give a clearer image of the future and demands that those who are not paying attention to technology ought to. In this regard, it’s interesting to see aspects of technological determinism in Bernard J. Hibbitts, "Last Writes? Reassessing the Law Review in the Age of Cyberspace," New York University Law Review 1996 78: 615-688; also in First Monday, volume 1, number 3 (October 1996), at http://firstmonday.org/issues/issue3/hibbitts/. Hibbitts insists that "contemporary technological developments in the printing and publishing industry in the late nineteenth century made law school sponsorship of legal periodicals conceptually plausible and financially practical for the first time" (p. 618). This allows him to argue that a change in technology must transform legal scholarship along the lines he envisages. He justifies his historical technological claim by noting that the "high-speed rotary press came into general use about that time" and paper prices dropped (p. 620). It is, however, unlikely that anyone would have printed a law journal, with their low print runs, on such presses, which amortized their high set up costs over high runs. Printers would have been more inclined to use letterpress for journals, as they had since the eighteenth century. Equally, the drop in paper prices as rag gave way to wood pulp would not have made a great difference to the exclusive readership for these journals. And the major technological innovation of the period, colour printing, still has had made no significant impression on legal printing. Similarly, Martin, "The Internet", argues that the printing press transformed the law. In fact, the legal system was probably relatively slow to respond to print. Manuscript was hard to shake off in courts themselves. And even legal scholarship probably took more time than hindsight suggests to become dependent on print. Certainly, when the patent covering the printing of legal texts in England was contested in the seventeenth century, protests came from the patent holders. The legal system, by contrast, seems to have been comparatively indifferent to the proliferation of pirated legal texts. See Adrian Johns, The Nature of the Book: Print and Knowledge in the Making (Chicago: University of Chicago Press, 1998), 299ff.
8. Geoffrey Nunberg, "The Places of Books in the Age of Electronic Reproduction," Representations 1993 42: 13-37.
9. The term also embraces not just a technology, but the institutions of publishing, bookselling, reading, bibliography, libraries, and so on.
11. Geoffrey Nunberg, "L’Avenir des Bibliothèques Numériques" paper presented at the forum Le livre a-t-il un avenir? Lyons, 1998. It is worth emphasizing how different types of book have different responses to their embracing technology. (When I was discussing the curious significance that weight lends to the worth of a desk dictionary - that we understand the value of a 25-pound dictionary, while the value of a 2500K online dictionary is relatively impenetrable - a sharp legal mind could barely contain the objection that Mein Kampf is no more valid for being heavy. Mein Kampf, of course, is not a dictionary.) Similar misreadings occur in debates about technology and the law school. As I am trying to argue here, development under pressure from technology will affect different aspects of legal education in different ways.
12. The idea that the book is a "machine" was promoted by the literary critic I.A. Richards. See Principles of Literary Criticism (London: Routledge & Kegan Paul, 1960), p. 1.
13. Jerome Bruner, The Culture of Education (Cambridge, Mass.: Harvard University Press, 1996). The argument here is laid out more fully in John Seely Brown and Paul Duguid, The Social Life of Information (Boston: Harvard Business School Press, 2000).
14. The term comes from Jean Lave & Etienne Wenger, Situated Learning: Legitimate Peripheral Participation (New York: Cambridge University Press, 1991). Lave and Wenger use the notion to develop a social theory of learning. In looking at education technology, it is worthwhile to ask what theory of learning is assumed. Too often it is that learning is little more than the reception of information.
15. The terms extensive and intensive come from Roger Chartier, who argues that there are two distinct forms of reading. The extensive involves many works, each read relatively superficially; the intensive involves few, each read and reread in depth. See Roger Chartier, "Laborers and Voyagers: From the Text to the Reader," Diacritics, 1992 22(2): 49-61.
16. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1937 [first published 1776]), p. 719.
17. It is remarkable how readily, for example, people generalize from technological successes in graduate teaching to future changes in undergraduate training, or from the University of Phoenix’s appeal for upgrading workplace skills to its promise for introductory college courses.
18, Quoted in Oliphant, "Will Internet-Driven Concord," p. 848.
19. Robert H. Thomas, "‘Hey, Did You Get My E-Mail?’ Reflections of a Retro-Grouch in the Computer Age of Legal Education," Journal of Legal Education, 1994 44, quoted in Heise, "Closing One Gap," p. 282.
20. Memorandum from James P. White, Consultant on Legal Education to the American Bar Association, to Deans of ABA Approved Law Schools (6 May 1997) ["Temporary Guidelines"], at http://www.abanet.org/legaled/distanceeducation/distance.html#MEMORANDUM%20D9697-59. To bring this barrier down, proponents may be wiser to confront these objections than to ignore them and simply abuse the ABA as conservative.
21. Alfred D. Chandler, Scale and Scope: The Dynamics of Industrial Capitalism (Cambridge, Mass.: Belknap/Harvard University Press, 1994), p. 83.
22. For the notion of business education as a cadre-forming enterprise, see Richard D. Brown, "Early American Origins of the Information Age," pp. 39-54 in Alfred D. Chandler and James W. Cortada, eds., A Nation Transformed by Information: How Information has Shaped the United States from Colonial Times to the Present (New York: Oxford University Press, 2000), p. 41. Of course, conventional Marshallian clusters also helped cadre’s form outside the education system. School-formed cadres may have been more important in a country where commerce was geographically dispersed, and Britain’s relative decline may have other explanations than Chandler’s.
23. Another sign of the depth and intensity of legal socialization might be the intriguing way in which those who denounce the system from within often do so in remarkably Kingsfield-like harangues. The system they denounce is inescapably part of their habitus.
24. Richard Eyre and Nicholas Wright, Changing States: An Illustrated History of Twentieth Century Theatre In Britain and America (London: Bloomsbury, 2000).
25. Quoted in Heise, "Closing One Gap," p. 849.
26. See the programme for the 1999 CALI conference http://www.cali.org [visited 14 March 2001; note, the site uses frames, so it is not possible to link directly to the 1999 conference page]. Session titles include "Principles for Web Course Design and Retrofit", "Cradle to Grave with Oracle", "The D2G Service Model", "Getting Jiggy with ASP", "Metatag Depositories", and the like. The focus is heavily on technological rather than sociological issues, where communities are more likely to come to the fore. For the Open University, see for example, Sir John Daniel, "Open Learning at a Point of Turning," speech delivered at the ICDE Asian Regional Conference, Delhi, India, November 2000 (available online at http://www.open.ac.uk/vcs-speeches/ [visited 14 March 2001]). For TVI, see Gibbons, Jim, Rob Pannoni and Jay Orlin. 1996. "Tutored Video Instruction: A Distance Education Methodology that Improves Training Results," paper presented at the American Society of Training and Development International Conference and Exposition, Orlando, Fla., 3 June 1996. For video-supported teaching in the law, see Andrea L. Johnson, "Distance Learning and Technology in Legal Education: A Twenty-First Century Experiment," Albany Law Journal of Science and Technology, 1997 7: 213-268.
27. See John Seely Brown and Paul Duguid, "Knowledge and Organization: A Social Practice Perspective," Organization Science 2001, 12 (2): 198-213. The view of practice presented there and here leans heavily on Gilbert Ryle’s Concept of Mind (London: Hutchinson, 1949). As Ryle argues, learning the rules of chess does not show how to play the game of chess. But learning to play chess allows you to interpret the rules.
28. Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931), quoted by Justice John Paul Stevens, dissenting in Bush vs Gore, whence this reference comes.
29. Justice Holmes was also aware of the importance of the social practice of law as part of the triumph over individualism:
"When I think thus of the law I see a princess mightier than she who once wrought at Bayeaux, eternally weaving in her web dim figures of the ever lengthening past - figures too dim to be noticed by the idle, too symbolic to be interpreted except by her pupils, but to the discerning eye disclosing every painful step and every world shaking contest by which mankind has worked and fought its way from savage isolation to organic social life."This quotation is etched on the (west-facing) walls of Bolt Law School, University of California, Berkeley [visited 10 March 2001]. As will be clear by now, I am profoundly unsure about correct citations of law journals, laws, and judgement; I am completely at a loss for how to cite law school walls.
30. Strict constructionists, however, would seem to suggest that there is no such tension. All is prescription.
31. One of the serious challenges for the digital university is to preserve, in its own ways, this dynamic balance. For a related argument, see Philip E. Agre, "Commodity and Community: Institutional Design for the Networked University," Planning for Higher Education 2000 29(2): 5-14. Inept implementation, rather than allowing this versatile medium to enhance versatility, can actually work towards rigidity. See James Cornford, "The Virtual University is ... the University made Concrete?" Paper presented at the Annenberg/iCS conference on New Media and Higher Education, University of Southern California, October 2000.
32. The Kingsfield model of legal education was probably no more aware of its institutional or social role than are its putative replacements. But in the former setting, much of the learning came by default in the face-to-face form. The tunnel vision of technology, however, always risks screening out these unintended resources. See John Seely Brown and Paul Duguid, "Stolen Knowledge," pp. 47-56, In: H. McLellan, ed., Situated Learning Perspectives. (Englewood Cliffs, NJ: Educational Technology Publications, 1996).
33. See Richard Horton, "The Key to Life - or a Dead Molecule: Unresolved Questions about the Practical Value of the Genome," TLS 2001 5110: 13-15, p 14: "We have known for many years that this simple precept is wrong. DNA alone does not make protein. Indeed, RNA can "make" DNA, an inversion of the usual process that requires a special enzyme called reverse transcriptase."
34. Richard Lewontin, The Triple Helix: Gene, Organism, and Environment. (Cambridge, Mass.: Harvard University Press, 2000).
35. Stephen Jay Gould, "Humbled by the Genome’s Mysteries," New York Times (19 February 2001), p. A15.
36. Heise’s title, "Closing One Gap but Opening Another?", suggests this problem of interdependence.
38. See, for example, Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste. R. Nice, trans. (Cambridge, Mass.: Harvard University Press, 1984), idem, Homo Academicus. Peter Collier, trans. (Stanford, Calif.: Stanford University Press, 1988); Anthony Grafton and Lisa Jardine, From Humanism to the Humanities: Education and the Liberal Arts in Fifteenth- and Sixteenth-Century Europe. (Cambridge, Mass.: Harvard University Press, 1986).
39. Kenneth J Arrow, "Information and Economic Behavior," pp.136-152, In: K. Arrow. Collected Papers. (Cambridge, Mass.: Harvard University Press, 1984).
40. Heise, "Closing One Gap," p. 288.
41. Duke’s law school, for example, is apparently looking at the Fuqua business school’s partnership with Pensare. See Richard A. Danner, "Strategic Planning for Distance Learning in Legal Education: Initial Thoughts on a Role for the Libraries," paper presented at the Conference, "Not a Box but a Window: Law Libraries and Legal Education in a Virtual World," University of Toronto, 23 February 2001; available online at http://www.law.duke.edu/fac/danner/paper5.html [visited 14 March 2001].)
42. For this notion of supersession, see Paul Duguid, "Material Matters: The Past and the Futurology of the Book," pp. 63-101, In: G. Nunberg, ed. The Future of the Book. (Berkeley: University of California Press, 1996).
43. Henry H. Perritt, "The Internet Is Changing the Face of American Law Schools," Indiana Law Review 1999 33: 253-274. Perritt’s emphasis may reflect the absence of institutional analysis in his argument. It is will, rather than insight that he sees holding back developments.
44. For my hesitation about this use of markets, despite my reliance on Arrow’s argument, see Paul Duguid, "Technology, Markets, and the New Political Economy of Higher Education," Liberal Education 2001, 87 (2): 6-17.
45. My argument is not as contradictory here as it may seem. I am not trying to blame law schools both for and for not attending to the classroom. To change the institutional structure of law school, classroom practice must be changed. But addressing change at the level of the classroom alone will not bring about institutional change. To return to my earlier analogy, the classroom may perhaps be the DNA of law education, but to effect change, we need to address questions at the level of the organism too.
46. When people talk about the great egalitarianism of the new forms, it needs to be remembered that this sort of outsourcing gains many of its advantages by denying health insurance, unemployment benefits, pension plans, and job security. The current educational system has created a reserve army of the underemployed but highly credentialled who are now threatening those who gave them those credentials by bidding for their jobs at reduced rates. Self-exploitation is the competitive advantage of the desperate.
48. Vendors seem happy to admit that the digital world does not serve monographs and treatise well. Consequently, these are not part of the vendor’s business model. New and particularly for-profit educational institutions also tend to ignore the question of where research, particularly long-term research, will be conducted in the future. The UK Open University, though a distance educator, has turned itself into a major research institution. It is far from clear that UNext, Pensare, or other for-profit ventures will follow suit.
49. Though it might seem that they would, profits and public welfare do not naturally go together. For example, as profits have risen in the nation’s top law firms, pro bono hours have fallen. Between 1992 and 1999, they fell from 56 hours per year to 36 hours per year. See "Legal Firms Cutting Back On Free Services For the Poor," New York Times (17 August 2000), p. A1.
50. Westlaw’s recent acquisition of Findlaw raises serious questions about the clash of gift and market. Peter Lyman, "Digital Documents and the Future of the Academic Community," pp.366-379, In: R. Ekman and R. Quandt, eds. Technology and Scholarly Communication. (Berkeley: University of California Press, 2000). Talk of a gift economy makes it easy to miss these externalities. Writing for journals may look like a gift to some, but academic salaries subsidize most of this. Equally, programming for Linux often looks like a gift, but firms paying the salaries of Linux programmers again provide an unaccounted subsidy. Remove those externalities and the gift may disappear.
51. In asking about this topic, I was told by one law librarian that the corporate law library remained the common meeting ground in increasingly balkanized firms. Here lawyers inevitably run into colleagues from other specialties that they would not otherwise encounter. That struck me as both important and congenial for my theory. Unfortunately, I also asked a lawyer in such a firm. She told me that the major reason she goes to the library is to get some work done in peace because nobody goes any more. As if to endorse the latter view of the library, the Federal Courthouse in Portland (and perhaps others) gives, I think, each of the judges his or her own library. Increasingly, in a digital world common space may be only for those who can’t afford the option of private space.
52. The second role here is be far from trivial. Digital preservation, particularly of self-published items, remains problematic. Bernard Hibbitts’ article, "Last Writes," espousing self-publishing and dismissing the role of journals and libraries, presents an interesting study. The celebrated article was originally self-published and would still appear to be so according to Hibbitts’ Web page ( http://www.law.pitt.edu/hibbitts). Yet though apparent links remain on his site to the final digital version (1.2), it appears to be inaccessible (see http://www.law.pitt.edu/hibbitts/ver1p2.htm). Equally, the link to version 1.1 takes readers in a loop that does not include the paper. Nor does the "Archive" provide access ( http://www.law.pitt.edu/hibbitts/arclw.htm). The link there will only load as far as the message "Counter on this version terminated at 4141, March 3, 1997. Document archived "As is" March 8, 1997." (The archive does make Version 1.0 available.) Robust versions of the article are available at First Monday and a print journal New York University Law Review, institutions whose mediating role in publishing Hibbitts’s article sets out to prove unnecessary (See http://firstmonday.org/issues/issue3/hibbitts/ and note 7, above). The print version interestingly and intertextually provides an editorial comment: "Rumours of our demise are still greatly exaggerated" (p. 616n). In his response to Hibbitts’ claims, Zariski brings up the issue of discourse communities (see below) that he claims Hibbitts and I claim law school futurists tend to overlook. (Archie Zariski, "‘Knowledge Networks’ or Discourse Communities," First Monday 1997 2 (8), online at http://firstmonday.org/issues/issue2_8/zariski/. See also idem, "‘Never Ending, Still beginning’: A Defense of Electronic Law Journals from the Perspective of the E Law Experience," First Monday 1997 2 (6), online at http://firstmonday.org/issues/issue2_6/zariski/. For a librarian’s doubts about self-publishing in the law, see E. Dana Neascsu, "Legal Scholarship and Digital Publishing: Has Anything Changed in the Way We Do Legal Research?" Paper presented at the conference "Not a Box but a Window: Law Libraries and legal Education in a Virtual World," University of Toronto, 23 February 2001. [All links visited 15 March 2001].
53. The phrase "information sprayed on paper" is attributed to Ted Nelson, the hypertext champion. The notion of transparency may originate with Shannon and Weaver’s famous mathematical model of communication, but that was deliberately indifferent to issues of meaning. See Claude E. Shannon and Warren Weaver, The Mathematical Theory of Communication. (Urbana: University of Illinois Press, 1964).
54. See, for example, Stanley Fish, Is There a Text in this Class? The Authority of Interpretive Communities. (Cambridge, Mass.: Harvard University Press, 1994). See also Brown and Duguid, Social Life, chapter 7.
55. Thus providers of legal information such as Findlaw and Cornell’s Legal Information Institute provide an invaluable public service.
56. "Lawyering by Laymen: More Do-It-Yourself Litigants Are Heading to Court," New York Times (22 January 2000), p. B1.
57. Martin, "The Internet," p. 196.
58. Robert C. Berring, "Legal Information and the Search for Cognitive Authority," California Law Review 2000 88 (6): 1675-1708, p. 1688.
59.59. Even now it is likely that online documents get much of their authority from the putative analogue documents from which they have been derived. On matters of authority, see John Seely Brown and Paul Duguid, "Borderline Issues: Social and Material Aspects of Design," Human-Computer Interaction, 1994 9 (1): 3-36.
60. See Elizabeth Eisenstein, The Printing Press as an Agent of Change: Communication and the Cultural Transformations in Early-Modern Europe. 2 vols. (Cambridge: Cambridge University Press, 1979); D. de S. Price, Science Since Babylon. (New Haven: Yale University Press, 1961); Diana Crane, Invisible Colleges: Diffusion of Knowledge in Scientific Communities. (Chicago: University of Chicago Press, 1972).
61. Johns, The Nature of the Book. Johns reminds us not to overestimate the stability of the texts in early books. These apparently immutable objects were actually quite variable. Although printing has become more reliably constant, I have heard that between impressions but within editions of the Bluebook changes are silently made.
62. Berring, "Legal Research," pp. 318 and 315. It is interesting to compare Berring’s concerns about the problems of using Google–like searches to structure information with Arms's more sanguine (and I would suggest more naïve) ones. See William Y. Arms, "Automated Digital Libraries: How Effectively Can Computers Be Used for the Skilled Tasks of Professional Librarianship," D-Lib Magazine, 2000 6 (7/8), online at http://www.dlib.org/dlib/july00/arms/07arms.html [visited 16 March 2001]. Arms and many in the law, I suspect, assume that information has an inherent structure and all technology has to do is respect that. For a contrasting view, see Geoffrey C. Bowker and Susan Leigh Star, Sorting Things Out: Classification and Its Consequences. (Cambridge, Mass.: MIT Press, 2000).
63. Danner, "Strategic planning"; Lyman, "Digital Documents," p. 377.
64. For the long history of information overload, see Luciano Floridi, Philosophy and Computing: An Introduction (London: Routledge, 1999).
65. The library cannot, of course, survive in any useful fashion if it is left just to warehouse those documents that commercial vendors are uninterested in carrying.
66. See the discussion of the "paradox of demassification" in Brown and Duguid, "Borderline Issues," pp.22-25.
67. While this may seem a fanciful explanation, the need for co-location in a period of unstable artifacts may help explain why, contrary to most expectations, the Bureau of Labor Statistics reports that at the height of the "dot.com" entrepreneurial boom, self-employment declined in absolute terms and in relative terms to levels not seen since 1960. See "Entrepreneurs’ ‘Golden Age’ Has Failed to Thrive in 90’s," New York Times (1 December 2000), p. A1.
Editorial history
Paper received 30 July 2002; accepted 14 August 2002.
Copyright ©2002, First Monday
Copyright ©2002, Paul Duguid
The Social Life of Legal Information: First Impressions by Paul Duguid
First Monday, volume 7, number 9 (September 2002),
URL: http://firstmonday.org/issues/issue7_9/duguid/index.html
