On the occasion of his appointment as the Henry N. Ess III Professor of Law, John Palfrey will give a lecture entitled, “The Path of Legal Information.”
I propose a path toward a new legal information environment that is predominantly digital in nature. This new era grows out of a long history of growth and change in the publishing of legal information over more than nine hundred years years, from the early manuscripts at the roots of English common law in the reign of the Angevin King Henry II; through the early printed treatises of Littleton and Coke in the fifteenth, sixteenth, and seventeenth centuries, (including those in the extraordinary collection of Henry N. Ess III); to the systemic improvements introduced by Blackstone in the late eighteenth century; to the modern period, ushered in by Langdell and West at the end of the nineteenth century. Now, we are embarking upon an equally ambitious venture to remake the legal information environment for the twenty-first century, in the digital era.
We should learn from advances in cloud computing, the digital naming systems, and youth media practices, as well as classical modes of librarianship, as we envision – and, together, build – a new system for recording, indexing, writing about, and teaching what we mean by the law. A new legal information environment, drawing comprehensively from contemporary technology, can improve access to justice by the traditionally disadvantaged, including persons with disabilities; enhance democracy; promote innovation and creativity in scholarship and teaching; and promote economic development. This new legal information architecture must be grounded in a reconceptualization of the public sector’s role and draw in private parties, such as Google, Amazon, Westlaw, and LexisNexis, as key intermediaries to legal information.
This new information environment will have unintended – and sometimes negative – consequences, too. This trajectory toward openness is likely to change the way that both professionals and the public view the law and the process of lawmaking. Hierarchies between those with specialized knowledge and power and those without will continue its erosion. Lawyers will have to rely upon an increasingly broad range of skills, rather than serving as gatekeepers to information, to command high wages, just as new gatekeepers emerge to play increasingly important roles in the legal process. The widespread availability of well-indexed digital copies of legal work-products will also affect the ways in which lawmakers of all types think and speak in ways that are hard to anticipate. One indirect effect of these changes, for instance, may be a greater receptivity on the part of lawmakers to calls for substantive information privacy rules for individuals in a digital age.
An effective new system will not emerge on its own; the digital environment, like the physical, is a built environment. As lawyers, teachers, researchers, and librarians, we share an interest in the way in which legal information is created, stored, accessed, manipulated, and preserved over the long term. We will have to work together to overcome several stumbling blocks, such as state-level assertions of copyright. As collaborators, we could design and develop it together over the next decade or so. The net result — if we get it right — will be improvements in the way we teach and learn about the law and how the system of justice functions.