Jason Wilson has an interesting new series of blog posts (1, 2) grappling at the idea of defining, or re-defining, the paradigms in which legal practice locates, defines, and uses authority. Ultimately, he argues that it is (past) time to abandon a tired “library” metaphor for a more modular, LEGO-like, approach to crafting responses to legal research needs.
It is an interesting, although incomplete, argument. I particularly find value in the first part, urging a reconsideration of both print and, more broadly, library metaphors for online, inter-linked, legal information. And I would agree that law libraries as institutions have often been too captive, if perhaps inevitably so, to incremental improvements in traditional services and resources, such that we are probably doomed to miss the really big disruptive, transformational, changes in the ways information (including legal information) is constructed and consumed.
While borrowing Jason’s disclaimer to state that I, also, am not a legal philosopher, it is by his analysis of law and legal change that I’m unconvinced. He seems to be writing off the construction of legal research tools around silos of authority (statutory codes, case repositories, etc.) as a rusty and outdated shackle that we’ve retained only from our habitual over-reliance on library metaphors. Instead, I see the tendency of online tools to erode the visibility of hierarchy and structure in the law as one of the greatest dangers of online legal research (to its practitioners) and, perhaps, even a danger to the broader nature and quality of legal work and discourse.
I should say the tendency and potential of online tools to erode the visibility of lines of authority and context — authority and context don’t disappear (replaced by some incompletely-defined LEGO-block of a legal meme) just like that – even if the collective cognitive structure of “law” is to break down over time it will be a slow process, leaving residues and traces, and the practitioner who understands those residual patterns is advantaged over the one who doesn’t. Actually, I’d say that so long as law is law our ability to make reference to these structures and contexts is essential. We’re all legal realists now, and we ‘play the game’ with self awareness, but nonetheless judging and other law-making activities are bounded and legitimized only by the necessity to make legal argument within the bounds of established hierarchies of authority and precedent, and with shared reference to external authority (both sovereign and cognitive) as defined and accepted within communities of practice. It is that “cognitive” part where I worry about researchers who’ve lost touch with context-giving research tools – it seems like there is value in crafting an argument, not just from a grab-bag of authorities, such as what court p has said about similar-scenario x, but also in knowing how legal issue y has traditionally been understood as a close cousin of legal issue z and how the law in a subject area y has tended to show more favor to analogy a than to analogy b because of a‘s relevance in the law of z.
The research component of this, and the law librarian’s stake, is that tools can either make those contexts and networks of authority transparent or not. I’d agree that we may reach a point where book-metaphor and library-metaphor representations aren’t the best way to clarify those connections — something “webbier” may be emergent. But context-providing research tools, from primary sources constructed as statutory codes to secondary sources like well-accepted narrative treatises that give voice to a practice community’s understanding of how its subject area is contextually organized, make it easier for practitioners to make good legal arguments and, presumably, for lawmakers to make good law. Tools that obscure context make it harder.
The existing generations of online research tools have obscured context — their focus (technically necessary at their inception) on literal, Boolean-based, textual retrieval targeted to an individual “document” removed all visible context. This is critically limiting as soon as search turns to something like a statutory code, that does have internal order, and accesses it using tools and paradigms (e.g. text-based query with each section defined as a ‘document’) that actively hide that internal order and context. For cases, bypassing a Digest does remove one external giver of order/context, but at least judicial opinions, in some sense, really do “float out there by themselves,” each an atomized document, just as they appeared in early Lexis or Westlaw, connected to one another primarily by way of citation and cross-reference (i.e. links). So a web of “links” — cross-referencing documents over time — isn’t actually a bad way to represent judicial law. New tools, like Westlaw Next, that (finally) replace both Boolean literalism and the crude relevance ranking of their old ‘Natural Language’ with the connection-seeking, link-parsing, logic of post-Google search engines are important, and will doubtless change the way we search, read, and write law. But I still have trouble seeing how such tools would replace some need to communicate structured context to the researcher. And so I remain skeptical of the logical next step, which would be a collapsing of any remnant of the “library metaphor” database directories into one big wide open Google-esque search box.
I have more to say about Jason’s second post, where he grapples toward a sort of object-oriented approach to legal argument (using a LEGO metaphor). So far as this seems to be a recognition of the inadequacy of some CALR equivalent of the basic Google search, while still looking for some alternative to the old database silos, I’m in sympathy. But that’s a whole other discussion…