John Palfrey: The Path of Legal Information

My friend, former boss, mentor and colleague John Palfrey is giving the “chair lecture” this afternoon to commemorate his new title as Henry N. Ess Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School. (Yes, I cut and pasted that. It’s a long title. :-) The talk is titled “The Path of Legal Information” and John’s notes and absract live here. Law School Dean Martha Minow explains that Henry Ess was preoccupied with early English law books, a peculiarity that developed as he was checking citations for a Harvard Law Review article, and led to him needing to pour concrete floors in his Manhattan apartment to support the 30,000 texts he acquired and later donated to Harvard.

Minow argues that if Ess collected books, Palfrey has been focused on changing the nature of legal research materials through his work at the Berkman Center and now at the library. She outlines Palfrey’s complex bonafides – his original research, his work building the Berkman Center, his work in the venture capital community and prior career as a practicing lawyer. And she offers a slew of endorsements from law school colleagues, which gives extra time to allow extra chairs to be brought into the Caspersen Room of Langdell Hall to seat the crowd that’s come to hear him.

John offers what he warns is a simplified historical view of legal information as the backdrop to a discussion of the future of legal information. The title of the lecture is a reference to Oliver Wendell Homes‘s famous article, “The Path of the Law”. (The room we’re in houses Oliver Wendell Holmes’s metal lunchbox. JP tells us that the Supreme Court justice didn’t actually carry his own lunchbox – he had a man to carry it for him.) In this 1897 article, Holmes wrote about a “thoroughly connected system” of English and US legal information an advocate sorts through to support his client – JP argues that a new, digital system is emerging.

The codification of English law began under King Henry II in the 12th century, but a larger second wave of collection came into play with printing in the 16th century, and we began seeing both a collection of law and commentary on laws. A third phase, at the end of the 18th century, came about in part through the work of William Blackstone. Blackstone’s great insight was that these legal books – which could cost a year’s salary – needed to be much cheaper. His inexpensively printed books sold massively in England and in the US.

The fourth phase of legal information comes about with Christopher Columbus Langdell – for whom Harvard’s library is named – who introduced the case system of law. Palfrey suggests we’re now seeing an emergent fifth system, though it’s coming about in desultory fashion.

When a decision comes out, it’s been produced in a digital fashion – that we print it out is an artifact of our current system. We should release this information in an open, interoperable fashion so that we can generate new systems atop the law.

Why should we do this? One major reason is cost. HLS’s library spends four million dollars a year acquiring legal information, hoping to maintain the world’s best private law library collection. 20 years ago, Harvard bought every law, in any language, from anywhere in the world. That’s no longer possible, nor has it been for a while – and we’re now admitting it. The people who publish it make a great deal of money on it, compared to other fields of publishing. This is somewhat outrageous because this is the packaging of public domain material.

The second problem it responds to is projects like Google Books which are digitizing knowledge and, potentially, exerting proprietary control over it. The potential of a digital library of Alexandria controlled by a for-profit entity is a worrisome prospect. We as scholars have made a commitment to Open Access to materials we create, allowing the school to publish our works as well as publishing them in academic journals. For these materials to be useful, they need to be indexed. Otherwise, we end up with a “book barn”, a chaos of information. We need to release information and make it findable, though avoid having it locked up by proprietary constraints.

Young people are living lives that are highly connected. They’re doing many things at a time, learning in different ways than many of us learned. Adults are doing this too – we’ve got the first Blackberry-toting president.

We tend to assume that the information young people encounter is digital in nature. JP tells us the story of his daughter using a disposable digital camera and wanting to be able to delete the bad ones – kids simply assume the digital nature of these materials. And much of the data encountered really is born digital – YouTube is the second largest search engine in the world. But there’s an anomaly to this world. Students seem to prefer books for long-form arguments. When we ask them why, they tell us the 3Bs – the bed, the bath, the beach. This tells me we need to rethink and re-imagine the digital book, perhaps around technologies like the iPad. If the media is digital, so the law should be.

One of the large trends in computing is cloud computing. Much of the computing power is now in the cloud, with services like Gmail or Google docs. Another is a change in publishing, where we may expect to see books become digital – Amazon is now selling more books for Kindle than hardcover books. More important may be the Espresso book machine from On Demand Books, which prints and binds paper books on demand for $8.

In the near future, we’re going to think of the digital file as the key piece of scholarship, and the print as something we do for convenience.

Palfrey introduces the Harvard Library Innovation Lab, who I wrote about earlier today. This is an interdisciplinary team challenged with making connections between existing libraries and the ways people research today. Students look to Google, then to Google Scholar and Wikipedia, not to reference librarians. If we’re not careful, this leads libraries to a role of warehousing old books. Students find books through Google, read reviews on Amazon then look on Harvard’s catalog to see if they can get it for free at a library. That, unfortunately, misses the point of libraries. The effort shouldn’t be about collecting materials – it should be about the systems that allow us to access and explore these materials.

JP notes that digital libraries tend to suffer from a lack of serendipity, the wonder of wandering the musty stacks and discovering books we didn’t know we wanted to read. We can do better at serendipity in the digital space than we do in the real world. If you bring a new book onto campus, it, or another book, is going to a book depository 26 miles away. There is no one stack – using a tool like Stack View, we can create virtual stacks of books. And we can sort them by popularity, by popularity with professors, by how often they’re put on reserve. We may be able to do much better in the serendipity business in a digital age.

Working with other Berkman professors, JP is trying to “hack the casebook”, expanding beyond an expensive paper book to one that appears virtually on as print on demand, and could include much richer multimedia materials. JP notes that some in the audience are authors of popular casebooks, and they may not like the idea, but virtually everyone else does.

The potential of doing this work becomes clearer in a global environment. Our ability to compare law across regimes would expand radically if we agreed on standards to put materials online, we’d have amazing new potentials for scholarship.

So what’s the tradeoff? The first obvious cost is a money cost. Court administrators complain that it would cost a lot of money to do this. As taxpayers, we don’t give enough money to courts for them to do this. In the long run, it’s probably cheaper to do this digitally rather than using the cludgy process we use today. Second, there’s a high cost associated with privacy. Putting all these legal materials, which can be accessed in county courthouses, may create privacy risks for people that force us to think through this very carefully. We might not want to put family law cases into the system, and may not want all depositions to be available – JP notes that he was recently deposed and observes that few of us are at our best under a skillful deposition.

A third group that doesn’t like these ideas are librarians who are concerned about authenticity and provenance. JP tells us that we could do a better job of authenticating than we do in an analog world, but that there’s a near-term cost that’s real and needs addressing.

Another demerit is the rise of a cut and paste culture in the legal profession. We want students not just to find answers in search engines and cut and paste the answers – we want them to understand the broader context. But that’s a challenge we all have to face now as educators.

Interoperable legal information, JP believes, will lead to new knowledge. It will also allow us to cope with incredible scale – we produce so much law these days that we’re going to be overwhelmed with the sheer volume of this material – we need new tools to cope with what we’re creating.

In our midst, JP tells us, we have the computer scientists that can work with the lawyers and librarians to make sense of this field. The work of organizations like CAST who make legal information available for people with disabilities also relies on digital access to law. And we’ll see new connections. JP shows a visualization of the spread of scholarly letters which helps illuminate how ideas and knowledge spread in an earlier scholarly age. When Charles Langdell started teaching law from cases and those cases were widely published, we began comparing and seeing holes in our legal system, imperfections that weren’t apparent until we began to look at the whole picture. Being able to visualize is one powerful way to get this sort of big picture.

The results of this movement may be a change in perceptions of law. If we put computer programmers and AI materials, we might see systemic biases around gender and race. This might be helpful for our understanding of how legal systems work, but it also might undercut our confidence in the law. This could make judges uneasy, in much the same way that Charlie Nesson’s efforts to webcast from within courtrooms make judges uneasy. We need to prove that more transparency is a good thing, not one that should have chilling effects. A possible side effect of this system is that judges might have a bit of medicine that their children are currently getting as concerns online privacy. It’s possible that people who’ve lived in a well-protected environment might not understand that children are now experiencing a situation where their actions are completely recorded – this might lead to a kinder view towards substantive privacy protections in legislation and in the judiciary.

Holmes told us that “the man of the future is the man of statistics and the master of economics”. That statement has proved prescient as there are clearly new opportunities for understanding law through statistics and other fields of scholarship. We may see a continuing decline in the treatise, and an increase in teaching the skills individuals need to understand the law themselves.

The audience laughs when JP shows a slide of the book “The End of Lawyers?” by Richard Susskind. The digital environment, Palfrey tels us, amplify other trends like globalization. Those trends transform law, but aren’t the end of lawyers. Nor are they the end of law libraries. JP shows us a cartoon of a library, retitled, “Museum of the History of the Internet”. But Palfrey argues that libraries are more important in a digital age. The physical space of the library contains the history of the institution. We encounter artifacts that remind us of our past. And moving through the library, we encounter students, more than in years past. There’s something about a contemplative space that makes the library attractive to students. Deans are often interested in taking space away from libraries – JP suggests this is the wrong trend and congratulates Dean Minow for not going down this path.

Collections are changing. We and Boston area law libraries are unlikely to continue to compete purely on the size of our collections. But curating and making sense out of collections – of these physical objects – is an essential part of the librarian’s task. Not every regime in the world is stable. Harvard’s libraries have pre-Soviet materials, and they’re used literally every day, as JP discovered when he tried to move them off campus. There’s late 19th century Turkish materials that don’t exist in Turkey. This institution has thought about materials through the ages in a way that transcends digital and physical – it’s about preserving knowledge.

Finally, the library is about the people who understand these collections and who can empower the people who need to access and understand these materials. Those people render sensible the highly complex system that characterizes our law and the materials around it, and that doesn’t change in a digital age.

When the university build Langdell, a building that houses the library and classrooms, we weren’t living in a digital age. Now students do a great deal of their work in a virtual environment. We need to think about our virtual architecture as much as the architects thought about our physical space. If we think it through, it will be better for jailhouse lawyers, for lawyers with disabilities, and ultimately better for teachers, lawyers, learners and judges, though it may be more difficult in the short run. We should design and build this thoroughly connected system for access to legal information.

Jonathan Zittrain asks Palfrey to address questions of how legal scholarship changes in a digital age. He wonders whether a move from student-reviewed journals (a peculiarity of legal scholarship) to publishing on SSRN, where download counts seem to have become a proxy for quality scholarship, and a temptation to game the system. We know that the systems of publishing can direct scholars to specific topics, to appeal either to student reviewers or impatient downloaders. How will digital legal information change scholarship?

Palfrey responds that the long-form argument is not going away. We’ll continue to have law review articles and books. But we may start seeing new forms of legal scholarship that come from computer-aided analysis. He doesn’t think we should go too far down the path of blogging and tweeting as a replacement for in-depth scholarship.

Professor Wilkins asks a question about the future of “the law”. In a world with an increasing supply of information that people can use to support an argument, what’s the boundary on the law and on the law library? Palfrey admits that this is an unanswerable question, and then references an old debate – is the work of scholars talking about law part of the law? That’s a better accepted argument in European circles than in the US. But that blurry boundary is an old problem. A thoroughly connected system doesn’t care where that information lives – we simply care about being able to access it and reach it.

Dean Minow suggests that the world Palfrey describes is open to everyone with access, which could include a mobile device. That raises questions. How do we pay for this? How do we ensure reliability? How do we archive this information? Are we talking about a library that never closes? Palfrey makes clear that he has no interest in closing off the library, as students are desperate for every open seat. In a more serious sense, he tells us that openness is about a platform, a bedrock that everything else lives on top of. We’ll still have Lexis and Nexis, and we’ll pay for them, as they’re useful in organizing the law in ways that are powerful and helpful. But we need diverse new ways too look at information. If we open the bedrock, we can have open and closed new lenses on top of that foundation.

The event ends with the unshrounding of John’s chair, which he promptly sits in and receives a standing ovation from the crowd.

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