Collisions in the Digital Paradigm II – Recorded Law
Author’s Note: This post develops further some of the themes that have appeared in earlier posts on this blog. The title reflects a particular post from March of last year which considered the nature of copyright in the digital paradigm. In particular this post develops and expands the analytical model further.
“When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”[1]
Introduction
Marshall McLuhan articulated two aphorisms that aptly encapsulate certain realities about the impact of the media of information communications. “The medium is the message”[2] – perhaps his most famous and yet opaque statement – emphasises the importance of understanding the way in which information is communicated. According to McLuhan, we focus upon the message or the content that a medium delivers whilst ignoring the delivery system and its impact. In most cases our expectation of content delivery is shaped by earlier media. We tend to look at the new delivery systems through a rear view mirror and often will seek for analogies, metaphors or concepts of functional equivalence to explain the new medium that do not truly reflect how it operates and the underlying impact that it might have.
“We become what we behold. We shape our tools and thereafter our tools shape us”[3] is the second aphorism that summarises the impact that new media may have. Having developed the delivery system, we find that our behaviours and activities change. Over time it may be that certain newly developed behaviours become acceptable and thus underlying values that validate those behaviours change. In the case of information delivery tools, our relationships with, expectations and use of information may change.
McLuhan’s first aphorism is that content alone does not cause these modifications. My suggestion is that it is the medium of delivery that governs new information expectations, uses and relationships. How does this happen? One has to properly understand the tool – or in the case of information communication, the medium – to understand the way in which it impacts upon informational behaviours, use and expectations.
In the first part of this paper I shall consider the underlying qualities or properties of new information media. The starting point is to consider the approach of Elizabeth Eisenstein in her study “The Printing Press as an Agent of Change”.[4] I shall then consider the development of a similar approach to digital communications systems and particularly the Information Technologies of computers and the Internet. It will become clear that this is a complex and at times contradictory process for within the Digital Paradigm there are a number of tensions that result in nuanced conclusions rather than absolutes.
The second part of this paper moves to consider the impact of the Digital Paradigm upon the information matrix that is the Law. I argue that the authoritative basis of the Law lies in the way that the law is communicated, and that many of our assumptions about the certainty of law and the its foundations, particularly of the doctrine of precedent, have been built upon print technology. I suggest that the Digital Paradigm and an understanding of the new media for communicating legal information present some fundamental challenges to our assumptions about law and may well revolutionise established legal institutions and doctrines. In the course of this discussion I challenge the often advanced and convenient escape route that suggests that what the Digital Paradigm offers is merely content in a different delivery system which may be “functionally equivalent” to that which has gone before. I argue that escape route is now closed off in light of the fundamentally different manner by which content is delivered in the Digital Space.
Elizabeth Eisenstein and the Qualities of Print
There are some very sound reasons why it is that print has become an essential part of the authoritativeness of recorded legal information. These reasons may be located in the qualities that are associated with print itself – qualities that go below the initial nature of the content, and that differentiated print from the scribal system of recording information. The identification of these qualities has been at the heart of Elizabeth Eisenstein’s examination of the printing press and it impact upon the intellectual activities of literate elites in Early Modern Europe.[5]
Eisenstein’s theory holds that the capacity of printing to preserve knowledge and to allow the accumulation of information fundamentally changed the mentality of early modern readers, with repercussions that transformed Western society.[6] Ancient and Medieval scribes had faced difficulties in preserving the knowledge that they already possessed which, despite their best efforts, inevitably grew more corrupted and fragmented over time.[7] The advent of printed material meant that it was no longer necessary for scholars to seek rare, scattered manuscripts to copy. The focus shifted to the text and the development of new ideas or the development of additional information.
Six qualities of print were identified by Elizabeth Eisenstein that were the enablers that underpinned the distribution of content which enhanced the developing Renaissance, that spread Luther’s 97 arguments around Germany in the space of 2 weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution. Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial custom- based ever-changing law had to be recorded in a book for it to exist.
It would be fair to remark that Eisenstein’s approach was and still is contentious.[8] But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technology. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.
The six features or qualities of print that significantly differentiated the new technology from scribal texts identified by Eisenstein are as follows:
a) dissemination
b) standardisation
c) reorganization
d) data collection
e) fixity and preservation
f) amplification and reinforcement.[9]
Some of these features had an impact, to a greater or lesser degree, upon communication structures within the law.
Dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. For example, dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.[10]
Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content.[11] Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse.[12] In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact[13] and could be “cured” by the insertion of an “errata” note before the book was sold.[14] Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.[15]
In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[16] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.
Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Such ordering of material was seized enthusiastically upon by jurists and law printers.[17]
Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts.[18] Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition.[19] The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[20]
Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.
Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which version of the “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys[21] a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.
Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force.[22] Proclamation of laws in print was therefore within the reach of a reasonable proportion of the population.[23]
Although the features that I have discussed did not impact upon legal doctrine immediately, recent research would suggest that a preference developed for printed “authorities” was not slow in developing.[24]
Eisenstein’s identification of qualities builds upon McLuhan’s aphorisms. The identification of the qualities of the medium (print) goes below content and examines factors inherent within it and identify fundamental differences between the new medium (print) and the old (scribal production of texts). But importantly the identification of the qualities goes further than merely differentiating a new medium of communication from an old one. It identifies factors inherent in the medium that change attitudes towards information, the way it can be used and the user’s expectations of information. Fixity and standardisation allowed for the development and acceptance of text in print as authoritative which would be a significant factor for the development of law and legal doctrines – an example of McLuhan’s second aphorism.
Thus, Eisenstein’s theory recognises that media works on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies and possesses certain qualities.
The second level is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Thus the delivery system is the technology containing certain qualities that give rise to the second level which generates and dictates behaviour.[25]
Eisenstein’s argument is that when we go beneath the content that the system delivers and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible.
Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way in which we approach information change our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[26]
There can be no doubt that print ushered in a paradigmatically different means of communication based upon its qualities. My suggestion is that the developing reliance of lawyers upon printed sources is in fact informed by the underlying qualities of print rather than the content itself. Indeed, it could be suggested that the information that is the law is dependent upon the qualities of print for both its reliability and authoritativeness.
The advent of the Digital Paradigm, and the recording of legal information in digital format challenges some of the essential qualities of print – the qualities that lawyers, judges and law academics have confidently and unquestioningly relied upon for the authority of the law.
In an article that traced the use of “non-legal” information used in judgments the following observation was made:
“Now, however, the world of information readily available to lawyers and judges is vastly larger. Even apart from the on-line catalogs that make full university collections far more available than ever before to a person physically standing in the law library, there has been a dramatic change in what is available to the typical LEXIS or Westlaw subscriber in a law firm, court, or government agency; and Internet access multiplies the phenomenon even further. There is now a dramatically accelerating increase in the availability of nonlegal sources accessible through on-line information methods….
One of the most important features of law’s traditional differentiation has been its informational autonomy. In many respects legal decision making is highly information dependent and was traditionally dependent on a comparatively small universe of legal information, a universe whose boundaries were effectively established, widely understood, and efficiently patrolled.”[27]
One of the arguments that is advanced by those commenting on the Digital Paradigm and its effects upon law and legal scholarship is to try and locate a form of functional equivalence between the Print and the Digital Paradigms. And the reason for this lies in some of the unique qualities of the digital space itself. On a content level, superficially the content remains the same, but there are now present elements affecting the presence of content and its stability that challenge the certainties that accompanied information in print. I shall develop this point in the second part of this discussion but now I shall turn to the identification of the qualities of digital communications systems – qualities that make it paradigmatically different from what has gone before.
Identifying Digital Qualities
Using Eisenstein’s approach, the qualities present in the digital communications paradigm and which distinguish it from the pre-digital era, can be identified, although in so saying, the inventory that I have compiled is by no means complete. Nevertheless, these qualities all underlie the way in which content is communicated. They are not necessarily unique to the Digital Paradigm because, in some respects, some of them at least were present in some form in the pre-digital era. For example, some of the qualities identified by Eisenstein that were unique to print, such as dissemination, data collection, information reorganization, amplification and reinforcement have a continued manifestation in information communication technologies since the advent of the printing press. As new technologies have arrived, some of these qualities have been enhanced. Certainly the quality of dissemination has undergone a quantum leap in the Digital Paradigm from the Print Paradigm.[28]
My tentative inventory has identified some 14 qualities, which dramatically differ digital technologies from those that have gone before. They are as follows:
Continuing disruptive change.
In the past as new communication technologies have become available; there has been a period where the new technology has an opportunity to “bed in” before the next significant change takes place. For example the advent of the printing press in 1450 was followed by its spread through Europe, but, apart from improvements in the technology, no new communications technology was present until the development of the electrical telegraph system by Samuel Morse, Joseph Henry and Alfred Vail in 1836. Effectively, there had been a period of almost 400 years for the printing press to become accepted as a new means of communication. The telegraph system addressed the tyranny of distance and was followed by Marconi’s long distance radio transmission in the last decade of the 19th century. That was followed by developments in radio and within a short time thereafter, the development of television.
It can be seen from this very brief overview that the time between new technological developments in communications has shortened. Nevertheless, there has been a “breathing space” of increasing brevity between each one. The advent of digital technologies and particularly the rise of the Internet has meant effectively that breathing space has gone and continuing disruptive change is a reality. The nature of this change has been described in another context as “The Long Blur”[29] and as new information systems have driven change many earlier business practices have changed or, in some cases, become obsolete. Changes in work habits and attitudes, the concept of secure lifetime jobs have vanished along with associated concepts of loyalty to an employer and a recognition of the loyal employee. Although many new high paying jobs requiring exceptional skills and intelligence exist, many business models are now effectively service industries of which, in some respects, the law may be considered one.[30]
In essence the law is an “information exchange” system with a number of “information flows” throughout it. And why should lawyers and Judges avoid changes in the way in which information is delivered or the impact of the qualities that underlie new communications technologies? After all, both simply process information in a particular manner.
Permissionless Innovation
Associated with continuing disruptive change is the quality of permissionless innovation, particularly in so far as the Internet is concerned. In some respects, these two qualities are interlinked and indeed it could be argued that permissionless innovation is what drives continuing disruptive change. Permissionless innovation is the quality that allows entrepreneurs, developers and programmers to develop protocols using standards that are available and that have been provided by Internet developers to “bolt‑on” a new utility to the Internet. Thus we see the rise of Tim Berners-Lee’s World Wide Web which, in the minds of many, represents the Internet as a whole. Permissionless innovation enabled Shawn Fanning to develop Napster; Larry Page and Sergey Brin to develop Google; Mark Zuckerberg to develop Facebook and Jack Dorsey, Evan Williams, Biz Stone and Noah Glass to develop Twitter; along with dozens of other utilities and business models that proliferate the Internet. There is no need to seek permission to develop these utilities. Using the theory “if you build it, they will come”[31] new means of communicating information are made available on the Internet. Some succeed but many fail. No regulatory criteria need to be met other than that the particular utility complies with basic Internet standards.
What permissionless innovation does allow is a constantly developing system of communication tools that change in sophistication and the various levels of utility that they enable. It is also important to recognize that permissionless innovation underlies changing means of content delivery.
Delinearisation of information
This quality recognizes the effect of hypertext linking although the idea behind it is not new, nor does it originate with Tim Berners-Lee and the development of the World Wide Web, for it was propounded as early as 1948 by Vannevar Bush.[32] The reality of information delinerisation in many respects subtly changes approaches to intellectual activity that have their foundation in the printing press. By virtue of the organization of information in print, certain approaches to intellectual activity and habits of intellectual activity were influenced.
I am not for one moment suggesting that the linear approach to human thought and analysis had its origins with the printing press, for certainly it did not. But what print did was to enhance and solidify linear thinking.[33] Where there is standardisation and fixity of information within print, it is possible to develop associated information location devices such as indices and tables of content. Although tables of content were available within the scribal culture, that table of content was only relevant to the particular volume, given that it was difficult to achieve identical volumes, although it was not impossible. The mass production of identical copies enabled by print meant that accurate, consistent indices and tables of content could be provided. This meant that the linear approach to information was enhanced and emphasised and although footnotes could take the reader to different references, to follow such a line would require a departure from the primary text as the reader first located the referenced text and then sought the information within. In some respects the utilisation of footnotes was a form of “proto‑delinerisation”, if I can put it that way, but it was not until the development of the World Wide Web and the centralisation of information resources within the context of the Internet that full delinerisation became a reality.
The Internet brings the information to the reader and I shall discuss shortly the ways in which the Internet enables that through other qualities. The print paradigm essentially meant the reader or scholar had to seek texts or other forms of information in a library or various other locations. In essence the Internet brings the library to the scholar and it is by virtue of that that the delinerisation becomes significant.
By the use of hypertext links, the scholar or reader is immediately able to seek out the other information. This means that the reading, or information acquisition process, which is essentially linear in following a particular line of argument in the principal text, is interrupted as the scholar or reader follows the hypertext link to the other source of information. This can be done instantaneously. The equivalent within the context of the print paradigm would mean that they scholar or reader would stop at a particular footnote, go to the source of the information, say at a library, locate it, read it, consider it, and then return to the principal text. This would mean that the reading of the principal text would be prolonged considerably.
However, the potential within delinerisation is that it means the primary text no longer need be considered the principal source of information, in that the gathering together of information following hypertext links may result in the totally different approach to analysis than there was before. Not only would the principal text be subject to scrutiny and critique but it could be considered within the context of a vast range of additional information made possible by hypertext linking.
Delinerisation may well mean that a change could take place in the way in which an argument is developed, in that the manner of analysis may change. Linear structure is present throughout the law. For example, current judgment writing style follows a pre-ordained linear structure involving an introduction, identification of issues – both factual and legal – identification of evidence or information relevant to the issues, discussion and analysis of the evidence and matching them up with the issues and law and a conclusion.
New digital technologies mean already that some judgments utilise hypertext links. There are difficulties in this regard with the problem of “link rot”.[34] Link rot occurs where a given URL no longer links to material which is referenced, making a citation to that material worthless. Neacsu observes that
“many facets of print works such as fixity, uniformity, and authenticity26 are no longer automatically ensured, the concept of reliability has inevitably changed. However, because the fundamentals of Western scholarship are still the same, the need of accessibility of content-identical copies still remains.”[35]
This is particularly the case with the ability to access cited material, exacerbated by the phenomenon of link rot. Neacsu makes a number of suggestions whereby this problem may be met.
a) one is by the use of Persistent Uniform Resource Locators (PURLs) which provide a persistent way of locating and identifying electronic documents using the redirect feature built in to the HTTP protocol
b) Archiving including systems like the Internet Archive whilst recognizing that the scope and the running of this archive does not answer the needs of legal scholarship in that there is no reliable coverage of sources cited in law review articles and no reliable institutional overview.
c) Law Library preservation systems maintaining a digital archive that includes copies of all documents cited in all journals including student edited journals
d) The “Legal URL Archive” which would involve the creation of a mirror site in which duplicates of cited documents would be created with the objective of maintaining the document when it was cited (addressing the issue of stability) and keeping the information publicly available (addressing the issue of accessibility).[36]
As well as the ability to link to other material is the ability to embed other forms of content – video, audio, animations, diagrams and the like – within a judgment.[37] This may well mean in the future that the strict linear form of analysis which I have described may become a little less simplistic and a little more “information rich” involving a wider opportunity for the reader to explore some of the underlying support for a judgment and the analysis within it that is more immediate than was the case in the pre-digital paradigm, given the difficulties that one might have in tracking down sources.
This is not to say that linear analysis is dead, but what it does mean is that approaches to analysis may change in subtle ways as the result of the ability to bring all of the information that supports an argument into the one place at the one time.
Information Persistence or Endurance.
It is recognised that once information reaches the Internet it is very difficult to remove it because it may spread through the vast network of computers that comprise the Internet and maybe retained on any one of the by the quality of exponential dissemination discussed below, despite the phenomenon of “link rot.”[38] It has been summed up in another way by the phrase “the document that does not die.” Although on occasions it may be difficult to locate information, the quality of information persistence means that it will be on the Internet somewhere. This emphasises the quality of permanence of recorded information that has been a characteristic of that form of information ever since people started putting chisel to stone, wedge to clay or pen to papyrus. Information persistence means that the information is there but if it has become difficult to locate,and retrieving it may resemble the digital equivalent of an archaeological expedition, although the spade and trowel are replaced by the search engine. The fact that information is persistent means that it is capable of location.
Dynamic Information
In some respects the dynamic nature of information challenges the concept of information persistence because digital content may change. It could be argued that this seems to be more about the nature of content, but the technology itself underpins and facilitates this quality as it does with many others.
An example of dynamic information may be found in the on-line newspaper which may break a story at 10am, receive information on the topic by midday and by 1pm on the same day have modified the original story. The static nature of print and the newspaper business model that it enabled meant that the news cycle ran from edition to edition. The dynamic quality of information in the Digital Paradigm means that the news cycle potentially may run on a 24 hour basis, with updates every five minutes.
Similarly, the ability that digital technologies have for contributing dialog on any topic enabled in many communication protocols, primarily as a result of Web 2.0, means that an initial statement may undergo a considerable amount of debate, discussion and dispute, resulting ultimately in change. This dynamic nature of information challenges the permanence that one may expect from persistence and it is acknowledged immediately that there is a significant tension between the dynamic nature of digital information and the concept of the “document that does not die”.[39]
Part of the dynamic of the digital environment is that information is copied when it is transmitted to a user’s computer. Thus there is the potential for information to be other than static. If I receive a digital copy I can make another copy of it or, alternatively, alter it and communicate the new version. Reliance upon the print medium has been based upon the fact that every copy of a particular edition is identical. Thus, authors and publishers can control content.
In the digital environment individual users may modify information at a computer terminal to meet whatever need may be required. In this respect the digital reader becomes something akin to a glossator of the scribal culture, the difference being that the original text vanishes and is replaced with the amended copy. Thus one may, with reason, validly doubt the validity or authenticity of information as it is transmitted.
Dissociative Enablement
The quality of dissociative enablement has implications for user behaviour. Another way of describing dissociative enablement could be disinhibition. This quality inherent within Internet technologies enables an Internet user to engage in cyber-stalking, to embark on a discussion utilising language and tone that one would be reluctant to use to the correspondent or auditor face to face[40], and enables the Internet criminal to commit fraud or other forms of Internet crime without having to confront the victim. Dissociative enablement or disinhibition enables behaviours to take place on the Internet that might not otherwise take place within the physical context. Dissociative enablement or disinhibition have an impact on the nature and quality of discourse within the Internet space.
In many respects, it enables what perhaps may be a more robust form of discourse than might otherwise be the case. Whether or not that is a good thing is not for me to say. Yet it is behaviour that this quality enables that cannot be ignored, and, of course, it is ultimately tied in with the delivery of content and the nature and quality thereof.
Participation and Interactivity
A further aspect of the digital environment that differs from the print paradigm is one of interactivity and I have already made reference to this is my discussion about dynamic information. Reading from the print media is essentially a passive activity and any interactivity may be on the part of the reader making notes or writing thoughts or concepts that develop as a result of the reading process. In the digital environment the reader may interact with the text as it is presented. In this respect the acquisition of information in the digital environment become associative and non-linear.
In some respects participation in the context of social interaction is associated with dissociative enablement and with the information dynamic. But the Internet enables a greater degree of participation in dialog and discourse than might earlier have been the case. In the pre-digital paradigm participation within a discussion or engagement with an issue may only have been available through the “letters to the editor” column or perhaps, if one were so motivated, pamphleteering. The Internet now enables immediate participation within a debate and the ability to share one’s thoughts through the use of blogs, Twitter, Facebook and other forms of social media. Furthermore, the ability to participate, engage in debate, seek out information and engage with others probably is the greatest opportunity to embark upon a form of participatory democracy. On a global sense, that mirrors the Athenian form of participation and perhaps may even be the first time that the community has had such an opportunity to so engage. The quality of participation is driving many governments towards considering on-line voting, recognising that the Internet enables an opportunity for greater engagement by the community with the political system. It doesn’t stop there. The participatory possibilities of the Internet could well mean that in the future juries would hear trials on-line rather than being physically present in a court room.
Volume and capacity
The data storage capabilities of digital systems enable the retention and storage of large quantities of information. Whereas books and other forms of recording information were limited by the number of pages or the length of a tape, the potential storage capabilities inherent in digital systems while not limitless nor infinite are, comparatively with other media, significantly greater. This phenomenal increase in the amount of information available has a corresponding downside in that information location can, by virtue of volume alone, become difficult. This is resolved by other qualities of the technology. However, information volume is an issue that has an impact upon certain understandings that apply to law and legal principles and which I shall address at a later point in this paper.
Exponential dissemination
Dissemination was one of the leading qualities of print identified by Eisenstein, and it has been a characteristic of all information technologies since. What the internet and digital technologies enable is a form of dissemination that has two elements. One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender. Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.
The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before. In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does) cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and samizdats but in these cases dissemination was very small.[41] Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.[42]
The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users. Indeed, news organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists.[43] Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This in turn exacerbates the earlier quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.[44]
The “non-coherence” of information
If we consider a document – information written upon a piece of paper – it is quite easy for a reader to obtain access to that information long after it was created. The only thing necessary is good eye sight and an understanding of the language in which the document is written.
Data in electronic format is dependent upon hardware and software. The data contained upon a medium such as a hard drive requires an interpreter to render it into human readable format. The interpreter is a combination of hardware and software. Unlike the paper document, the reader cannot create or manipulate electronic data into readable form without the proper hardware in the form of computers.[45]
Schafer and Mason warn of the danger of thinking of an electronic document as an object ‘somewhere there’ on a computer in the same way as a hard copy book is in a library. They consider that the ‘e-document’ is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, are assembled, processed and rendered legible for a human user. Schafer and Mason observe that in this respect the document as a single entity is in fact nowhere. It does not exist independently from the process that recreates it every time a user opens it on a screen.[46]
Computers are useless unless the associated software is loaded onto the hardware. Both hardware and software produce additional information that includes, but is not limited to, metadata and computer logs that may be relevant to any given file or document in electronic format.
This involvement of technology and machinery makes electronic documents paradigmatically different from ‘traditional documents.’ It is this mediation of a set of technologies that enables data in electronic format – at its simplest, positive and negative electromagnetic impulses recorded upon a medium – to be rendered into human readable form. This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object. Much will depend, for example, upon the word processing programme or internet browser used.
The necessity for this form of mediation for information acquisition and communication explains the apparent fascination that people have with devices such as smart phones and tablets. These devices are necessary to “decode” information and allow for its comprehension and communication.
I made reference in the introduction to this paper to the issue of ‘functional equivalence’ and perhaps the only way in which an electronic document may be seen as ‘functionally equivalent’ to a paper based document may be in the presentation of information in readable form. In the case of a Firm of Solicitors v The District Court Auckland,[47] Heath J noted that s 198A of the Summary Proceedings Act 1957 was designed to deal with a paper based environment but that now more often than not, information is stored primarily in electronic form. He adopted a functional equivalence approach to executing a search warrant.
With respect I consider that ‘functional equivalence’ is an unhelpful concept, although to make the statute work in 2004, it was probably the only option available to Heath J. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented.
In the context of the New Zealand Search and Surveillance Act 2012 it is interesting that the complexity of electronic information is something that is capable of being searched for or ‘seized’ yet is described as an ‘intangible’ thing. The ultimate fruit of the search will be the representation of the information in comprehensible format, but what is seized is something paradigmatically different from mere information, the properties of which involve layers of information. It is clear that the legislation contemplates the end product – the content contained in the electronic data – yet the search also involves a number of aspects of the medium as well. In the ‘hardcopy’ paradigm the medium is capable of yielding information such as fingerprints or trace materials, but not to the same degree of complexity as its digital equivalent. Similarly, the complexities surrounding E-Discovery demonstrate that an entirely different approach is required from the traditional means of discovery.[48] Although Marshall McLuhan intended an entirely different interpretation of the phrase, ‘the medium is the message,’[49] it is a truth of information in digital format.
Format Obsolescence.
In the print and scribal paradigms, information was preserved as long as the medium remained stable. The Dead Sea Scrolls and early incunabula from the print paradigm provide examples. But, as I have observed above, no intermediate technology was required to comprehend the content.
The quality of continuing disruptive change means that not only are digital technologies and communications protocols in a state of change, but within many of the programs that are commonly used, new versions come available with enhancements and often new formats. This is further complicated by the unwillingness of software developers and distributors to continue support for products that have been replaced by new versions. The problem of content access is further exacerbated when earlier formats for content or data storage are replaced, and therefore the information stored in those earlier formats cannot be accessed.
For example, Microsoft Word uses the file extension .doc for its native file format. However, the reality is that the .doc extension encompasses four distinct file formats:
- Word for DOS
- Word for Windows 1 and 2; Word 4 and 5 for Mac
- Word 6 and Word 95 for Windows; Word 6 for Mac
- Word 97 and later for Windows; Word 98 and later for Mac
Most current versions of Word recognize the fourth iteration of the .doc format which is Binary File Format implementing OLE (Object Linking and Embedding) structured storage to manage the structure of the file format. OLE behaves rather like a hard drive system and is made up of a number of important key components in that each Word document is composed of “big blocks” which are almost always (but do not have to be) 512 byte chunks. Thus a Word document’s file size will be a multiple of 512.
“Storages” are analogues of the directory on a disk drive, and point to other storages or “streams” which are similar to files on a disk. The text in a Word document is always contained in the “WordDocument” stream. The first big block in a Word document, known as the “header” block, provides important information as to the location of the major data structures in the document. “Property storages” provide metadata about the storages and streams in a doc file, such as where it begins and its name and so forth. The “File information block” contains information about where the text in a Word document starts, ends, what version of Word created the document and other attributes. Microsoft has published specifications for the Word 97-2003 Binary File Format but it is no longer the default, having been replaced by the Office Open XML standard, indicated by the newer .docx extension.
The problem is that if one wishes to open a Word document created by a version preceding Word 97 in a recent iteration of Word (say Word 2010) it will be blocked. There is a work-around but that involves a level of complexity that may discourage average users.[50] Although there may be converters available for older formats, again this adds an additional layer of complexity for those who are not adept at computer use.[51]
An additional layer of difficulty arises where there is lack of interoperability with proprietary file formats from other data or text storage programs and where those programs have been discontinued and are no longer available. This is a problem encountered particularly in the E-Discovery when historic documents are sought. In addition, there may be hardware difficulties where data may be stored on old media such as old floppy disks. Modern computers no longer include a floppy disk drive – indeed data is rarely if ever stored on such low capacity media – and only allow USB storage devices to be used.
Because of the way in which information is encoded in the digital environment, the information exists, but is not available. Thus, the document is still “alive” but is in a state of suspended animation until its content can be accessed.
Format obsolescence does not challenge the concept of Information persistence or endurance because aspects of the Internet enable that. It is, however, a subset of the necessity for technological mediation between stored digital data and its rendering in a comprehensible form.
The last three qualities are interrelated. These are:
Availability of Information
Searchability of Information
Retrievability of Information
As I have earlier suggested, these qualities are associated with persistence of information and the information dynamic, but what is important is, as I have already suggested, that the Internet enables the information to come to the user. No longer does the user have to go to the information. This recognises one of the fundamental realities that characterises the nature of information within the Internet space and one that must be also considered in terms of information and use generally and that is the concept of “information flow” to which I have already made reference.
The Internet enables and enhances the flow of information towards the user, rather than the user directing him or herself towards the information. This is recognised by the availability of information which, as I have suggested, is associated with information persistence. What is significantly different with the Internet is that the information is constantly available, 24 hours a day, 7 days a week, 365 days of the year. The Internet is always on – it is always “open”. Information availability is not restricted by time or the presence of a librarian and is impeded only if the site where the information is held is down for some reason.
One of the problems with information both in the sense of persistence and available is finding out where it is. Before the Internet went “public” and was essentially a university or research based tool, users developed means of locating information of which Gopher was one example. The arrival of the World Wide Web resulted in the development of various search engines of which Google has now become the dominant force. Searchability of information means that the vast library of the Internet can reveal its treasures as long as one is competent in the use of a search engine. Most users utilise pretty basic search terms but more sophisticated use of search terms and construction narrows the scope of the information sought and returns more precise results. The important thing is that searchability of information means that the information availability is enhanced.
The third part of the trilogy of course is retreivability. This means that the available information has been located by a search is instantly retrievable, and importantly, the information flow is towards the user, rather than the reverse.
Some Observations
Before concluding this discussion about the qualities of the Digital Paradigm there are two comments that need to be made The first is, as I have already suggested, there is an overlap or merger between some of the qualities that I have identified. The quality of Information Persistence exists in tension with the dynamic nature of information, with format obsolescence and digital information non-coherence. Certainly the Internet and its protocols give greater emphasis to Information Persistence than the other competing qualities, but it must be recognized that this example of a “qualities tension” means that any analysis of the impact of Digital Paradigm qualities must be a nuanced one. On the other hand some approaches may only involve the application or consideration of some of the qualities. Internet-based analysis is not so likely to involve format obsolescence which is very likely to arise in a consideration of E-Discovery approaches.
The second is about the wider issue of the effect the Internet may be having upon the way that we think.
Will delinearisation change the way that we think? This gives rise to the question of whether or not the internet changes us forever. Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli. The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[52] His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.
The neuroplasticity argument is picked up by Susan Greenfield[53] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it. Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour. We want new interactive experiences and we want them now.
This view is disputed by Aleks Krotoski[54] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again. According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting. Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.
Like Krotoski, William Bernstein[55] rejects Carr’s thesis. Bernstein points out that neuroplasticity is a phenomenon well known to brain researchers. He then goes on to ask and answer Carr’s question
“Does the Web rewire your brain? You bet; so does everything you actively or passively experience. Literacy is possibly the most potent cerebral rewire of all; for five thousand years humans have been reassigning brain areas formerly needed for survival in the natural environment to the processing of printed abstractions. Some of this commandeered real estate has almost certainly been grabbed, in its turn, by the increasing role of computers and the Internet in everyday post-industrial life. Plus ca change.[56]
Bernstein then goes on to examine Carr’s theory that Internet use decreases concentration on the matter at hand, emphasising the use of hyperlinks. Bernstein accepts that we have better information retention if it is placed in front of us on one page rather than chasing it through a maze of hypertext links. On the other hand, he observes, real life rarely supplies us with precisely the information that we need in one document. Those skilled at following informational threads through different sources will succeed more often than those spoon fed information.[57]
Bernstein finally confronts Carr’s argument in this way:
“Carr’s thesis almost automatically formulates its own counterargument: Life in the developed world increasingly demands non-rote, nonlinear thought. Shouldn’t learning to navigate hypertext skilfully enhance the ability to make rapid connections? Shouldn’t such abilities encourage the sort of nonlinear creative processing demanded by the modern work environment, and make us smarter, more productive, and ultimately more autonomous and fulfilled…..
If the Web really is making American stupid, then shouldn’t citizens of more densely wired nations, such as Estonia, Finland and Korea, be hit even harder? The question answers itself.”[58]
In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[59] to advance their propositions. Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between. The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.
My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.
This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important. Our decision making is based upon information. Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it. The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.
And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm. It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[60]
Law and Precedent in the Print and Digital Paradigms
The assumptions that underlie the doctrine of precedent provide an example of how Digital Paradigm qualities present a new challenge to the law.
For hundreds of years law was declared or “discovered” by Common Law Judges on a case by case basis. Judges might follow the decisions of other Judges in similar cases but because of the rarity of adequate written records, and the distance between Courts coupled with inadequate transportation and communication systems there was considerable variance between and even within jurisdictions. Law was highly localised and individualised. The goal of the Monarch’s law may have been, as Maitland put it in the context of feudal contract , to swallow all other law but it was no easy task to accomplish at the time.[61]
The advent of the Print Paradigm and the qualities of print affected the structure, the capabilities and functioning of law in various ways. It is not “fine print” that characterises the law, but print itself. Print effected and affected the organisation, growth and distribution of legal information. The processes of law, the values of law and many of the doctrines of law required a means of communication that was superior to handwriting and handwritten manuscripts to store information.
Ethan Katsh puts forward the proposition that changes in the means used to communicate information are important to law because law has come to rely on the transmission of information in a particular form. Katsh propounds that law does not simply produce information but structures, organises and regulates it.[62] It does this primarily through the medium of print.
Law before Gutenberg was different from law today in significant ways. The printing press made it possible for the past to control the future as never before. Prior to the printing press scribes merely took notes, under the Judges direction, of what was said and done. Without a verbatim transcript of judicial proceedings, later Judges could not be certain what was said and done previously. Thus with most law residing in the minds of Judges and not in black and white on paper, Judges could innovate and invent while pretending to follow strict precedent. This ended with the printing press, printed judicial decisions, printed positive law and especially printed constitutions.[63]
Printing and the qualities identified by Eisenstein enabled many copies of one text to be distributed throughout a community or a country. It meant that the mistakes, errors and glosses that had previously been a characteristic of the scribal culture were no longer perpetuated. It meant that the words that were printed and read by a person in London were the same as those read from the same edition by a person in New Orleans. The printed word could not be changed. Once it was on paper it was immutable. Printing replaced the brittle oral and script forms of communication with a stable, secure and lasting medium. Memory, so vital for the oral tradition, could now be committed to print. Instead of looking for the earliest or original manuscript that had not received the attention of glossators, one seeking information would look in the latest print edition.
In the medieval period, oral contracts were often preferred over written ones. The nature of writing and the idea of placing reliance upon or consulting a written document was not common. Memory was considered to be more trustworthy than something written and practical questions were answered by oral testimony and not by reference to document.[64] If there was a dispute over land ownership and a written charter needed interpretation or was contradicted by what was remembered, memory took precedence over written proof and the principle that an oral witness deserved more credence than written evidence was a legal commonplace.
The development of movable type resulted in a product more fixed and stable than the work of a scribe. Forgery and careless copying became less common. Granted, printed works could contain errors but a large number of standardised copies provided works that were not easily changed. That in itself gave a sense of authority and authenticity that had been lacking earlier. A reader could assume that the printed word were the words of the author.
The advent of print provided a keystone for the legal process. The development of the common law by a system of precedent is expedited when lawyers and Judges have a common reference point and can rely on the fact that there are exact copies of a case or a statute in different places. Thus, lawyers and Judges are assured that the language that they are using is identical to the language consulted by others.
Printing enabled the standardisation of legal information and the words on paper began to acquire an authority that had been lacking in the scribal period. Thus law, previously associated with custom and the remembered words of Judges and what was contained in the Year Books, gave way to law based upon books. Printing was introduced into England in 1476 and five years later the first law books were printed. In 1485 the printing of Parliamentary Session Laws began.
The history of the doctrine of Judicial precedent is intimately bound up with the history of law reporting and the development of law reporting, as we know it, could not have taken place without print [65] By the Eighteenth Century the printed word was sufficiently reliable that;
“Each single decision standing by itself had already become an authority which no succeeding Judge was at liberty to disregard.”[66]
In 1765 Lord Camden claimed that if the law was not found in the books it was not law[67]. By the end of the Eighteenth Century the importance of Law Reports was such that Edmund Burke claimed “to put an end to the reports is to put an end to the law of England”[68]
Thus the development of print and the development of precedent, a foundation stone of our common law legal structure, are inextricably linked. Precedent provides fairness, in that like cases should be treated alike, and as an aid to judicial decision-making to prevent unnecessary reconsideration of established principles.[69]
The development of precedent provides certainty and security in the law so that citizens may rely upon it to order their affairs. Yet, by the same token, the legal process is not renowned as innovative and has rarely been at the forefront of change. Rather, it puts brakes on change by way of precedent.
Precedent has been adopted by the legal process to integrate legal change to the pace of change in society. If the law is to become more tolerant of change the role of precedent will continue to evolve. It will not disappear as a concept but it will not be the concept to which we have become accustomed.
The development of precedent has been somewhat serendipitous. Holdsworth observed “One of the main conditions for the success of the system of case law is a limit on the number of case reports”[70] and Grant Gilmore[71] has observed that;
“When the number of printed cases becomes like the number of grains of sand on the beach, a precedent-based case law system does not work and cannot be made to work … the theory of precedent depends, for its ideal operation, on the existence of a comfortable number of precedents, but not too many.”
The nature of the printing technology imposed a limitation on the number of cases that could be reported and printed and the speed with which they may be published. Indeed, the authority of case law has been enhanced by a slow development where reported decisions are not rapidly modified. Leading cases not only settle a particular point of law but also add to the general authority of decisions because they settle a point with some finality.
Thus, the very nature of the print paradigm has placed certain boundaries upon the development of law and has allowed for the development of the doctrine of precedent to the point where we are today.
Diana Botluk describes the challenges posed by Internet publication in the following way:
“Publication on the Web can often bypass.., traditional methods of filtering information for quality, thus making the end user of the information more responsible for the evaluation process.”[72]
The traditional methods to which she refers include determining that
a) “an authoritative source” has written or published the information;
b) that the information has been “authenticated by editorial review”; and
c) that it has been “evaluated by experts, reviewers, subject specialists or librarians.”[73]
Print and Precedent as a Brake on Change
Thus the law had an ally in working towards its goal of maintaining a measured pace of change. The silent partner which has assisted in fostering a public image of law as an institution that is both predictable and flexible is the communications medium that has dominated the legal process for the past 500 years, the medium of print. As the new digital media of the twentieth and twenty-first centuries have taken on some of the duties performed by print, one of the consequences will be to upset the balance of the law has worked so diligently to achieve over several centuries.[74]
The importance of publication – up until recently in print – as an authoritative concept is put into sharp focus by the following comment by Professor Robert Berring:
“The doctrines of the law are built from findable pieces of hard data that traditionally have been expressed in the form of published judicial decisions. The point of the search is to locate the nugget of authority that is out there and use it in constructing one’s argument.
Because legal researchers are so accustomed to this idea, it is difficult to realize how unique this concept is in the world of information. In most fields in the humanities or social sciences, a search of the literature will reveal certain orthodoxies or prevailing views, certain points in contention with each side having its own warrior-like adherents, but there are no points of primary authority. There are no nuggets of truth or treasure …. Legal researchers believe that there are answers out there that are not just powerfully persuasive, but are the law itself.”[75]
Precedent has been a brake on change. To continue the motoring metaphor, within the law it has also encouraged the rear-view mirror[76] as a mode of thinking about the present and future. Paul Levinson suggests, in the context of media studies, that we frequently use backward looking metaphors for the new digital environment. Realaudio becomes equated with “radio” – a metaphor enhanced by streaming content. Research takes place in a “digital library”. An online chat room is treated as a “café”. Information provided in a web browser is a “web page” and information that does not appear on the screen extends the print metaphor to one from the newspaper world – the information is “below the fold”.
These analogies, according to Levinson, call attention to the benefit of walking into the future with our eyes upon the past, but he also points out that the mirror may blind us to ways in which the new medium is not analogous to the media of the past. If we use the Internet as a library, unlike the real world library, when the Internet connection crashes it is impossible to continue reading the text. If for some reason the lights go out in the library an alternative light source can be found. Levinson demonstrates the problem in this way:
“If we stare too long into the rear-view mirror, focussing only on how the new medium relates to the media of the immediate past, we may crash head-on into an unseen, unexpected consequence. On the other hand, if we look only straight and stiffly ahead, with no image or idea of where we are coming from, where we have just been, we cannot possibly have a clear comprehension of where we are going. … A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens. But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment. One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future. Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers. Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”[77]
Using Levinson’s rear-view mirror and recognising that by developing that metaphor further we are in a state of movement and in transition – moving away from the print paradigm and moving towards the digital paradigm, not yet divorced from the one and not fully attached to the other. It took a generation for print technology to move from the lectern-based bible of Gutenburg to the convenience of a handheld book that could be included in a traveller’s pack. Henry VII recognised the value of the new technology when he came to the throne 10 years after Caxton introduced the press by appointing a Stationer to the King – an office which later became the King’s Printer. Nearly 100 years after Caxton, Edmund Plowden recognised the damage that could be done to his reputation if he did not supervise the printing of his Commentaries. Lawyers and Judges were giving credit to printed material in the early Seventeenth Century[78] at the same time as Sir Edward Coke was ensuring his approach to the law would be disseminated and preserved by the printing of his Reports and Institutes.
In some respects this explains why it is that we seek to explain and use new communications phenomena by the term “functional equivalence.” Functional equivalence in itself is a manifestation of rear view mirror thinking – an unwillingness to let go the understandings of information that we had in the past. It roots us in an environment where the informational expectations no longer pertain – where the properties of the equivalent technology are no longer applicable or valid
This reflection upon the transition from the scribal culture to that of print, whilst recognising that the two co-existed for a considerable period demonstrates that we must adapt to new technologies and at the same time adapt the old. But we should not adapt nor allow the values arising from the qualities of the old technology to infect or colour our understanding or approach to the new. Certainly the use of precedent, by its very nature involves use of the rear view mirror. This is not to decry the importance and necessity of precedent as a means of creating certainty and consistency in the law. But, as the argument develops, it may be seen that we may lose those two elements of the law that we take so much for granted as we move into an environment of constant, dynamic and disruptive change.
We are so familiar with the paradigm of print that we do not give its ramifications or its qualities a second thought. The qualities of dissemination, standardisation, fixity of text and the opportunity to cross reference to other printed sources go unnoticed. We have become enured to them. Yet they provide the foundation for our acceptance of printed law as reliable and authoritative. Earlier editions of the Blue Book, which is the American Uniform System of Citation not unlike the rules provided in the New Zealand Law Style Guide, provided that citations should be to paper versions. Rule 18.2 provided
This rule requires the use and citation of traditional printed sources, except when the information is not available in a printed source, or if the traditional source is obscure or hard to find and when the citation to an Internet source will substantially improve access to the same information contained in the traditional source. In the latter case, to the extent possible, the traditional source should be used and cited.[79]
Since that was written there have been two subsequent editions of the Bluebook, but the directive preferring print sources remains the same although they may be forgone if “there is a digital copy of the source available that is authenticated, official, or an exact copy of the printed source.”[80]
In its preference for printed sources, the Bluebook impliedly recognises that information in the Digital Paradigm by its nature and with its different underlying qualities presents an entirely different information environment[81]
One of the most significant aspects of the Digital Paradigm is continuing disruptive change. Moore’s Law[82] is as applicable to information in cyberspace as it is to the development of microprocessor technology. New information becomes available and is disseminated more quickly and exponentially via the Internet than previously through the print media. The Internet enables the distribution of Court decisions within hours of delivery rather than the months that it took for cases to be edited and printed in law reports and the information flow normally experienced where the student or lawyer would go to a library to access information is reversed – the information now is delivered to a local device.
New information can be manipulated more quickly by virtue of the dynamic document and participation. In the legal environment new cases and new developments may be publicised more rapidly but by the same token, unlike a paper document, a digital document “bears little evidence of its source or author.[83] In addition, greater credit may be given to “image-based” formats but Rumsford and Schwartz do not believe that “non-imaged” documents should receive the same treatment as paper.[84]
Continuing change challenges even the certainties that law librarians try to ascribe to certain formats – new information is constantly replacing old information and old information appears to be less and less relevant to the solution of modern problems. Our legal system, particularly in terms of the development of principle, has moved at a measured pace. The availability of large amounts of new information and the change in perspective that that new information introduces creates challenges for a system that is accustomed to looking backwards towards precedent and that moves at a sedate pace.
The development of precedent is characterised by what could be referred to as landmark decisions or leading cases. These settle a particular point of law. They also add to the general authority of judicial decisions because they appear to settle the question with finality. The digital environment provides us with more material in more recent cases that more swiftly modify the broad statements of principle contained in landmark decisions.
Other qualities also come into play, many of which challenge those of the print paradigm upon which the law relies. In my discussion about delinearisation of information I made reference to the fact that the primary text may no longer be considered the principal source of information, and that text could be considered within a wider informational context and could change the linear approach to analysis. This quality may underlie a challenge to a strict form of analysis based upon an a previously accepted line of cases.
Information persistence and endurance is what the law requires for its certainty – something that the Print Paradigm has been able to give it, but the tension arises with dynamic information which constantly develops, grows and changes. This is associated with the quality of volume and capacity. The storage capacity of computer systems is so large as to be almost unlimited. At a time when print libraries are nearing capacity with the amount of printed information available digital systems can be seen as a blessing, but also pose serious challenges to established legal thinking. One of these lies in the identification of the necessity for a critical mass of decisions for the development of a precedent based principle.[85] The quality of high volume of decisions challenges this. The information is available, searchable and retrievable and because of the higher volumes of caselaw available the minutiae of fact situations or the nuance of legal interpretation becomes apparent, eroding the earlier certainties that were present with the “critical mass” of information that was a characteristic of precedent.
The Digital Revolution and the Legal Process
In 1996 in his book The Future of Law: Facing the Challenges of Information Technology[86] Richard Susskind suggested that today we are between the phases of print and information technology and, in essence, are in a transitional phase[87] similar to the co-existence of the scribal and print cultures in the law in the late Sixteenth and early Seventeenth Centuries. He was of the view, correctly in my opinion, that in the days of the oral tradition and the scribal culture, change was a rarity. In the Digital Paradigm, information is dynamic and subject to regular alteration rather than remaining in static form and from this arise a number of consequences or features. Susskind described them as unfortunate, although it may be that there is a certain inevitability arising from the qualities of information in the Digital Paradigm.
Hyper-regulation, the Internet and Too Much Law
One of the features identified by Susskind is what he describes as the hyper-regulated society. Susskind identifies the phenomenon which I suggest is driven by the qualities of the Digital Paradigm. Being hyper-regulated means that there is too much law for us to manage and our current methods for managing legal materials are not capable of coping with the quantity and complexity of the law which governs us. Another of the difficulties pointed to by Susskind is that hyper-regulation is aggravated by difficulties in the promulgation or notification of legislation and case law. One of the requirements of Lon Fuller in his book “The Morality of Law” was that a failure to publicise and make available rules that citizens are expected to observe results in bad or, at worst, no law.
Although the digital environment has not been solely responsible for the hyper-regulation described by Susskind, certainly the ability to generate large quantities of printed material has moved from the print shop to the photocopier and then onwards to the word processor with high capacity laser printers and now to digital space via the Internet. Technology allows text to be transmitted and disseminated at minimal cost.
Susskind’s consideration of hyper-regulation is further evidenced by the large volume of legal material that now was available in print but now more so in electronic form from the Courts and from legislatures. Whilst one should resist the suggestion that such volume is overwhelming, certainly there is more material available for consideration. Pressures, particularly upon legislators and the Judiciary, to perform within set time frames simply mean that much potentially relevant material may well be overlooked. A further consequence of the hyper-regulation described by Susskind is the wide variety of information resources provided by new technologies. For example, television is no longer a limited number of network channels but Cable TV, satellite systems, Internet TV and on-line content distribution such as Hulu and Netflix thus allowing almost an infinite number of sources of information. The television is an Internet portal for the home.
Thus, we have before us a huge selection of informational alternatives. The information received from each source may be different in appearance and content from the information received by others. Furthermore, the nature and content of information will change. The day may not be too far off when information from the Courts in terms of decided cases may become akin to watching a breaking news story on YouTube or social media as more and more information becomes available from the Courts and is disseminated or becomes the subject of commentary.
Thus, from hyper-regulation and the vast amount of material provided by the digital environment, which, by its nature, is dynamic and subject to rapid and constant change, a lawyer or Judge searching for relevant cases now has more material to sift through, more detail to assimilate and more flexibility in terms of potential arguments or outcomes. The consequence of this could be to change the nature of legal argument from what could be described as a linear progression through a line of cases in the development of a precedent to the point where the authority of those cases is diminished or negated by the wealth of material available. Holdsworth comments that a system of precedent:
“Will not work so satisfactorily if the number of Courts, whose decisions are reported, are multiplied. The law is likely to be burdened with so greater mass of decisions of different degrees of excellence that its principles, so far from being made more certain by the decisions of new cases, will become sufficiently uncertain to afford abundant material for the infinite disputations of professors of general jurisprudence. A limitation is needed in the number of reported cases … English lawyers have hardly realised that it was a condition precedent for the satisfactory working of our system of case law.”[88]
The more cases that are available the greater the flexibility and the creation of a legal argument but the adverse consequence is that in terms of developed principle the link with precedent becomes more ephemeral. The delinear approach may introduce an alternative to the linear progression that has marked the development of principle.
The Internet has made more legal information available to more people more immediately than at any other time in human history. Although this fulfils the philosophical and societal ideals of bringing law to the people and providing for a fully informed populace, the implications for informational reliability and for precedent are substantial.
Internet availability of judgements at a number of levels means that decisions are accessible everywhere, cross-jurisdictionally. The prohibitions on the citation of unpublished opinions in the United States may well crumble in the face this technological revolution.
It is clear that the increased availability of and access to judicial pronouncements and the number of opinions and judgements that are available in addition to traditional hard copy reported decisions has serious ramifications both for the precedential value of those decisions, and indeed for the concept of precedent itself. There is no doubt that the law is unable to resist the tides of change. The question is: During this transitional period, how may the law accommodate change and maintain its integrity in providing the rules that regulate the activities and relationships of citizens within the community? The law traditionally looks back to precedent but the digital environment means that the depth of field is shorter. The problem is with the vast amount of material that is available, how can one maintain a precedent-based system that will rely upon dynamic changing material rather than the reliability provided by the printed law report.
In addition, an overly large volume of decisions may mean that cases become determined not on a carefully refined and developed legal principle, but on factual similarities. The authority of precedent in the past has depended upon the fact that the legal process does not rapidly modify reported decisions.[89]
The Twilight of Precedent ?
It seems that there may be two possible alternative ways forward. One is based on the concept of functional equivalence. This solution focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its qualities make the nature of information and its communication different from what went before. In addition content itself lacks the fixity or stability of printed text. It may be suggested that a number of rules might be developed around which the challenges posed by digital qualities may be met. Such an approach artificially tries to maintain a reality that is no longer present.
By the same token technological co-existence will allow the status quo to continue, at least for a reasonable period of time, in the same way that manuscript and scribal habits continued well past the introduction of the printing press. The pace of change, as suggested by Susskind, will overtake co-existence within a generation or so, if that, rather than over a period of centuries.
The real test will probably come as lawyers are drawn from the ranks of those commonly described as Digital Natives[90] – those who have grown up in the Digital Paradigm and know no other means of information communication apart from device driven digital ones.
A way in which functional equivalence may be maintained, however, is if the technology itself may provide an answer – a technological solution to the problems that digital qualities pose. This may be termed the “Charles Clark” solution deriving from his oft-quoted solution to challenges to intellectual property in the Digital Paradigm – “the answer to the machine is in the machine.”[91]
But what if the machine does not provide an answer and digital qualities do force a re-assessment of precedent as a result of the challenges posed by the qualities of digital information systems? What shape will precedent and the common law then take? Will the detailed principles developed by precedent become a series of broadly stated principles rather than the refined an intricate intermeshing of decisions that exists at present? Will the common law as we understand it wither or perhaps be replaced by a rule-based system similar to that of some European countries? Given the suggestion that print sources incline one towards legal principles while keyword searches are more apt to generate groups of cases based upon similarities of fact[92] will litigants, frustrated by lack of clarity, consistency and predictability of outcome where judges rely only upon fact specific outcomes, turn to arbitrators and mediators who are quicker, cheaper and less troubled by the procedural arcana of a Court.
It may well be that by travelling the digital path (and that journey, once started, cannot be retraced) we are irrevocably committed to a course that will change the doctrine of precedent as we know it.
[1]Marshall McLuhan Understanding Media: The Extensions of Man (Sphere Books, London 1967)
[4] Elizabeth Eisenstein The Printing Press as an Agent of Change (Cambridge University Press, Cambridge, 1979) 2 Vols. Reference will be made to the 1 volume 1980 edition; Elizabeth Eisenstein, The Printing Revolution in Early Modern Europe (Cambridge University Press (Canto), Cambridge, 1993).
[6] Eisenstein The Printing Press as an Agent of Change above n. 4 p. 159.
[7] Thomas Jefferson observed that because a larger number of books were printed than available in manuscript, the chances of more copies surviving were greater. Thomas Jefferson to Ebenezer Hazard, 18 February 1791 in M.D Peterson (ed) Thomas Jefferson: Writings (Library of America, New York, 1984) p. 973. Jefferson also expounded on the preservative power of print in a letter to George Wythe dated 16 January 1796 stating of his researches into the laws of Virginia “our experience has proved to us that a single copy, or a few, deposited in MS in the public offices cannot be relied on for any great length of time.” see p.1031
[8] See for example the debate between Adrian Johns and Elizabeth Eisenstein – Adrian Johns, “How to Acknowledge a Revolution” (2002) American Historical Review 106; Elizabeth Eisenstein, “An Unacknowledged Revolution Revisited” (2002) American Historical Review 87; Elizabeth Eisenstein “A Reply – AHR Forum” (2002) American Historical Review 126. See also Adrian Johns, The Nature of the Book (University of Chicago Press, Chicago, 1998); David McKitterick, Print, Manuscript and the Search for Order 1450 – 1830 (Cambridge University Press, Cambridge, 2003); Eric J Leed “Elizabeth Eisenstein’s The Printing Press as an Agent of Change and the Structure of Communications Revolutions ” (Review) (1982) 88 American Jnl of Sociology 413; Diederick Raven,“Elizabeth Eisenstein and the Impact of Printing” (1999) 6 European Review of History 223; Richard Teichgraeber “Print Culture” (1984) 5 History of European Ideas 323; William J Bouwsma “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (Review) (1979) 84 American Historical Review 1356; Jack Censer “Publishing in Early Modern Europe” (2001) Jnl Social History p.629; Charles B Schmitt “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (1980) 52 Jnl Modern Hist 110; Carolyn Marvin “The Printing Press as an Agent of Change: Communications and Cultural Transformations in Early-Modern Europe” (Review) (1979) 20 Technology and Culture 793 together with a recent collection of essays examining Eisenstein’s theory and its impact Sabrina Alcorn Baron, Eric N Lindquist, Eleanor F Shevlin (eds) Agent of change : print culture studies after Elizabeth L. Eisenstein ( University of Massachusetts Press, Amherst, 2007)
[9] Eisenstein The Printing Press above n.4 generally p. 43 et seq; especially p.71 et seq. The Printing Revolution above n. 4 p. 42 et seq.
[10] Early print fonts, especially in legal works, imitated scribal forms but later gave way, in the seventeenth century, to the more legible roman font. Some of these early styles were difficult to read, even for the highly literate. This was the case with early legal texts in England which were printed in “black letter”. The use of the Roman font did not become common until the early seventeenth century. For an example of “black letter” see Totell’s published Year Books or William Fulbecke Directive or Preparative to the Study of the Lawe (Thomas Wight, London 1600). The title page and introduction are in Roman. The text is in black letter. The difference is immediately apparent. On the other hand Michael Dalton The Countrey Justice (Society of Stationers, London 1613) is printed in Roman and is more easily readable than the black letter font.
[11] Note however the use by Tottel of mixed sheets from different printings. J.H. Baker “The Books of the Common Law” in Lotte Hellinga and J.B. Trapp (eds) The Cambridge History of the Book in Britain (Vol 3) (Cambridge University Press, Cambridge 1999) p. 427 et seq. Thus some of his printings were compilations. This suggests that the economics of printing may have contributed to circumstances that might have challenged the uniformity that standardisation required.
[12] Eisenstein The Printing Press above n. 4 p 80 et seq
[14] If errors were not detected print could facilitate the dissemination of false, incorrect or misleading information, despite Eisenstein’s claims that such problems could be met by error trapping which presupposed subsequent printings.
[15] The presence of errata did not guarantee their use. See for example the manual amendment by Lambarde to the 1569 printing of Bracton Sheffield University Library RBR Q 347(B) Folio 115V. The errata addressed the very mistake that Lambarde noted in hand,
suggesting that he had read the text without noting the errata.
[16] The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912. For a further example see Douglas Osler “Graecum Legitur: A Star is Born” (1983) 2 Rechtshistorisches Journal 194 which demonstrates the falsehood perpetuated by the founder of legal humanism, Alciatus, that he had consulted non-existent manuscripts as well as a surviving manuscript of the Digest (the Florentine Codex) when in fact he had not.
[17] Eisenstein The Printing Press above n.4 p. 103.
[18] The issue of error was a matter which had an impact upon the reliability of printed legal material.
[19] Eisenstein The Printing Press above n. 4 p. 107 et seq.
[20] Cited by J.A. Cochrane Dr Johnson’s Printer:The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2. See also Eisenstein, The Printing Press above n.4 p. 112.
[21] (John Rastell, London, 1531) STC 9521.
[22] Tessa Watt Cheap Print and Popular Piety: 1550 – 1640 (Cambridge University Press, Cambridge, 1991) p. 7. In 1600 52% of East Anglian tradesmen and craftsmen could sign their names compared with 80% in London. By the 1640’s roughly 30% of adult males in rural England could sign their names. David Cressy Literacy and the social order. Reading and writing in Tudor and Stuart England (Cambridge, Cambridge, 1980) p. 72. The upper classes, both nobility and gentry, men and women were on the whole literate in both English and French and often in Latin as well. John Feather A History of British Publishing (Croom Helm, London, 1988) p. 20.
[23] his does not automatically mean that there was understanding of some of the technical language. The ability to read does not necessarily import deep understanding.
[24] I.S. Williams, “He Creditted More the Printed Booke – Common Lawyers Receptivity to Print 1550 – 1640” (2010) 28 Law and History Review 38.
[25] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.
[26] I acknowledge that this is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination. I brief, the argument is this. Sir Thomas Egerton’s Discourse on the principles of statutory interpretation (S.E. Thorne (ed) A Discourse on the Exposition & Understanding of Statutes with Sir Thomas Egerton’s additions (Selden Society, London, 1942) was written in the middle part of the sixteenth century and heralded what was to become an important aspect of legal analysis – legal hermeneutics or the analysis of the language of a text – which depended first upon the textualisation of the law and secondly upon the availability of textualised law in multiple copies. Thorne states that the history of statutory interpretation starts in the sixteenth century and after the Henry VIII’s legislative outburst accompanying the break with Rome. Print in and of itself seems to have had little causative effect upon legislative and proclamatory activity of the Henrician Reformation, nevertheless the new technology was employed as a tool to disseminate the royal message. Thus detailed, textualised law, printed by the holder of the Royal Printing monopoly, became available in multiple copies enabling a greater consideration of the legislation and, importantly, its purpose as stated in the preamble. Assuming an absence of print, and assuming the historical progress of the Henrician Reformation with Cromwell’s legislative programme, it is possible that hermeneutics may have developed – probably more slowly – and it would have relied on manuscript materials. It must be remembered that some instances of conflict between print and manuscript copies of legislation were resolved in favour of the latter but in either event the text of the manuscript or in print required scrutiny. Print made this process easier for the lawyers and Judges in that the wider availability of printed material allowed for closer and lengthy engagement with the text. Thus it can be suggested that print contributed to the development of hermeneutics although that development may have been one of the unintended consequences of the State’s interests in the printing of statutes.
Whilst print may not have a direct impact upon changes in the nature of statutes themselves it may have enabled them and it certainly must have had an impact upon the distribution, consideration and analysis of statutory material, providing a fresh context within which statutes might be considered. Even although there may have been occasions where a manuscript version of a text was preferred to a printed one, the fact that such a comparison was taking place demonstrates that printed material was occupying an important place in the spectrum of legal information.
[27] Frederick Schauer & Virginia J. Wise “Nonlegal Information and the Delegalization of Law” (2000) 29 J Legal Stud 495 at pp. 512, 514
[28] Hence I have redefined it – see below under Eponential Dissemination
[29] Jim Dator, “Judicial Governance of the Long Blur” (2000) 33 Futures page 181 – 197
[30] For an examination of the changes in the legal profession and a possible future see Richard Susskind The End of Lawyers:Rethinking Legal Services (Oxford University Press, Oxford 2008) and Tomorrow’s Lawyers (Oxford University Press, Oxford 2013).
[31] In fact a misquote that has fallen into common usage from the movie Field of Dreams (Director and Screenplay by Phil Alden Robinson 1989). The correct quote is “If you build it he will come” (my emphasis) http://www.imdb.com/title/tt0097351/quotes (last accessed 4 November 2013)
[33] For further discussion, especially in the context of reading see Maryanne Wolff Proust and the Squid: The Story and Science of the Reading Brain (Harper Collins, New York 2007); Neil Postman The Disappearance of Childhood (Vintage\Random House New York 1994). Walter Ong Orality and Literacy: The Technologising of the Word (Routledge, Oxford 2002). Neil Postman Amusing Ourselves to Death: Public Discourse in the Age of Showbusiness (Penguin Books, New York 1986); Sven Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA, 1994); Sven Birkerts “Resisting the Kindle” (The Atlantic March 2009). and my discussion in “Why Do Jurors Go On-Line” The IT Countrey Justice July 27 2012 https://theitcountreyjustice.wordpress.com/2012/07/27/why-do-jurors-go-on-line/ (last accessed 7 November 2013)
[34] See for example Neacsu, Dana, “Google, Legal Citations, and Electronic Fickleness: Legal Scholarship in the Digital Environment” (June 2007). Available at SSRN: http://ssrn.com/abstract=991190 or http://dx.doi.org/10.2139/ssrn.991190; Rumsey, Mary “Runaway Train: Problems of Permanence, Accessibility and Stability in the Use of Web Resources in Law Review Citations” (2002) 94 Law Library Jnl 27; Susan Lyons “Persistent Identification of Electronic Documents and the Future of Footnotes” (2005) 97 Law Library Jnl 681; Zittrain, Jonathan and Albert, Kendra, Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations (September 21, 2013). Available at SSRN: http://ssrn.com/abstract=2329161 or http://dx.doi.org/10.2139/ssrn.2329161 Adam Liptak “In Supreme Court Opinions, Web Links to Nowhere” New York Times 23 September 2013 http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html?smid=re-share&_r=1& (last accessed 22 October 2013) See also the discussion below under the headings “Information Persistence”,” Format Obsolescence” and the “Non-coherence of Information.”
[38] Which may arise for any one of a number of reasons, many of which involve relocation of information rather than its total removal. For a counter-point to link rot see the discussion on Exponential Dissemination below.
[39] Although for the other side of this coin see the quality of format obsolescence
[40] The recent disclosures made by the soi-disant group “Roastbusters” on Facebook about their sexual exploits with young women is an example of dissociative enablement. In the “rea; word” they may have communicated with a limited number of individuals within their peer group. Now they communicate their behaviour – and the consequent embarrassment of their victims – to the world. For example see “Roast Busters: Over 63k call for PM to take action” NZ Herald 11 November 2013 http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11154984 (last accessed 11 November 2013.) This article is one of a large number published since the story broke on TV3 news on 3 November 2013.
[41] See William Bernstein Masters of the Word (Atlantic Books, London 2013). Especially chapter 8 “The Comrades Who Couldn’t Broadcast Straight” and pp.263 and following.
[42] Information flow in communication is important in analysing the impact of information. One of the most common errors in descriptions of the Internet is the suggestion that one should “go to” a certain address. The reality is that the enquirer goes no where. The information in fact flows in a direction opposite to that suggested in that the website is downloaded to the enquirer’s computer. This is perhaps an obvious an particularly egregious example of a misunderstanding of information flows especially within the technological sense. The practice of law is entirely about information flows and is an important element in determining, for example, the culpability of a juror for extra-curial communication. See “The Googling Juror: The fate of the Jury Trial in the Digital Paradigm” https://theitcountreyjustice.wordpress.com/2012/09/13/the-googling-juror-the-fate-of-the-jury-trial-in-the-digital-paradigm/ (last accessed 5 November 2013)
The “information flows” approach was developed by Professor Ian Cram. See Ian Cram “Twitt(er)ing Open Justice? or threats to fair trials in 140 characters) – A Comparative Perspective and A Common Problem”(Unpublished paper delivered at Justice Wide Open Conference, City University London, 29 February 2012) seehttp://www.city.ac.uk/centre-for-law-justice-and-journalism/projects/open-justice-in-the-digital-era (lastaccessed 4 April 2012). I am indebted to Professor Cram for providing me with his paper that he presented at the City of London Conference and for his analysis of information flows. The full paper may be found athttp://www.scribd.com/doc/97591724/Justice-Wide-Open-Ian-Cram-Twitt-er-ing-Open-Justice (last accessed 23 August 2012)
[44] This demonstrates that many of the qualities of the Digital Paradigm are interrelated.
[45] Burkhard Schafer and Stephen Mason, chapter 2 ‘The Characteristics of Electronic Evidence in Digital Format’ in Stephen Mason (gen ed) Electronic Evidence (3rd edn, LexisNexis Butterworths, London 2012) 2.05.
[47] [2004] 3 NZLR 748 at [110].
[48] E-Discovery demonstrates the interrelationships of Digital Paradigm qualities in that one of the basic problems within the discovery process is not only the “non-coherence” of information, but the volume of information spread across a vast array of platforms.
[49] Marshall McLuhan, Understanding Media above n.1
[50] File | Options | Trust Center | Trust Center Settings | File Block Settings allows the user to change the settings to enable opening files in earlier formats. Note that, if the user wants completely unrestricted access to these files, he or she needs to clear the check boxes for them so that whichever of the radio buttons is selected at the bottom does not apply to them. Alternatively, the user can leave them checked and opt to allow opening them in Protected View, with or without allowing editing.
[51] Some converters no longer work in new operating system environments. For example, converters designed for the Windows 32-bit system may be rendered obsolete by virtue of the fact that Windows 7 64-bit uses a different file path structure and registry keys.
[54] Untangling the Web: What the Internet is Doing to You (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.
[55] Above n. 41 esp at p.323 and following.
[59] Sometimes referred to as “The Frankenstein Complex”
[60] See above for some of the qualities of digital information technologies.
[61] Jim Dator “Judicial governance of the Long Blur,” Futures , Vol. 35, No. 1, January 2001; Frederick Pollock and Frederick William Maitland The History of English Law Vol 1 2nd ed. (Cambridge University Press, Cambridge 1968) p. 460
[62] Ethan Katsh The Electronic Media and the Transformation of Law New York Oxford University Press 1989
[64] Michael T Clanchy – From Memory to Written Record: England 1066 to 1307 (Oxford, Blackwell, 1993).
[65] T Ellis Lewis, “History of Judicial Precedent” (1930) 46 Law Quarterly Review 207.
[66] William Markby “Elements of Law” in Readings on the History and System of the Common Law in R Pound and T F T Plunknett (eds) (Rochester, NY; Lawyers Co-Operative 1927) p.125.
[67] Entick v Carrington [1765] EWHC KB J98; 19 Howell’s State Trials 1029 (1765).
[68] Quoted in Holdsworth, William, Some Lessons from our Legal History New York, Macmillan, 1928, p.18
[69] Schauer, F. Precedent (1987) 39 Stanford L.R. 571, 595 – 60.
[70] Some Lessons From Our Legal History above n. 67 page 19.
[71] Legal Realism: Its Cause and Cure, (1961) 70 Yale Law Journal 1037.
[75] Robert C Berring “ Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information” (1994) 69 Wash L. Rev. 9 at pp. 11 and 14
[76] Levinson, Paul Digital McLuhan – A Guide to the Information Millennium (Routledge, London, 1999). According to McLuhan’s laws of media, an environment obsolesces or reverses at the moment of fever pitch. The information environment, during its moment of superabundance, becomes obsolescent. It has passed into cliché, if we can see it at all. “’When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.” Marshall McLuhan and Quentin Fiore The Medium is the Massage : An Inventory of Effects (Gingko, Berkeley 2001)
[78] Ian Williams “He credited more the printed booke” above n. 24
[79] The Bluebook: A Uniform System Of Citation (Columbia Law Review Ass’n et al. eds., 17th ed.
2000). See also the reasons for an early reluctance to cite Internet materials including a lack of confidence in their reliability and accuracy. Many Web sites are transient, lack timely updates, or may have had their URLs changed. Thus many Internet sources .. . did not consistently satisfy traditional criteria for cite-worthiness. See Colleen Barger “On the Internet Nobody Knows You’re A Judge: Appellate Court’s Use of Internet Materials” (2002) Jnl Appellate Practice and Process 417 at 425.
[81] Ethan Katsh Electronic Media and the Transformation of Law: Law in a Digital World New York, Oxford University Press, 1995. Richard Susskind, The Future of Law: Facing the Challenges of Information Technology (Oxford University Press Oxford 1996).
[82] Moore’s law is the observation that, over the history of computing hardware, the number of transistors on integrated circuits doubles approximately every two years. The law is named after Intel co-founder Gordon E. Moore, who described the trend in his 1965 paper – Gordon Moore “Cramming More Components onto
Integrated Circuits” http://www.cs.utexas.edu/~fussell/courses/cs352h/papers/moore.pdf (last accessed 5 November 2013) His prediction has proven to be accurate, in part because the law is now used in the semiconductor industry to guide long-term planning and to set targets for research and development.
[83] Mary Rumsey and April Schwartz “”Paper vs Electronic Sources for Law Review Cite Checking: Should Paper be the Gold Standard” (2005) 97 Law Libr J 31 at p.42.
[85] See the comments of Holdsworth and Gilmore above notes 69 and 70.
[86] Richard Susskind The Future of Law: Facing the Challenges of Information Technology (Oxford University Press, Oxford 1996)
[88] “Some Lessons from our Legal History” op. cit page 22
[89] Katsh, Ethan The Electronic Media and the Transformation of Law New York; Oxford University Press; 1989 p.46
[90] The terms “digital native” and digital immigrants” were first used by Marc Prensky in an article which suggested that students who were born into the Internet Age were no longer the people the educational system was designed to teach Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf; http://www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf (last accessed 23 February 2012). For a brief introduction the the development of Presnsky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012)
Prensky spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.
Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality. Information is presented within textual constraints that originate in the Print Paradigm.
Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.
In the final analysis, the differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.
[91] Charles Clark ‘The Answer to the Machine is in the Machine’, in: P. Bernt Hugenholtz (ed.), The Future of copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995), (Kluwer Law International, The Hague, 1996).Charles Clark
[92] F Allan Hanson “From Key Numbers to Key Words: How Automation Has Transformed the Law” (2002) 94 Law Libr J 563 at 583.
The IT Countrey Justice 