The Internet: “Full and Unfettered Access” to Law – Some Implications

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Adapted from the Seibenthaler Lecture
at the Salmon P. Chase College of Law
April 1998

Northern Kentucky Law Review, volume 26, 181-209 (1999)

The Internet: “Full and Unfettered Access” to Law – Some Implications

Peter W. Martin1

Introduction – Multiple or Alternative Futures

This past year I was asked to contribute an essay covering the impact of technology, most notably the Internet, on legal education to a book that has since appeared in Austria2 – a reminder that the issues at the center of these reflections concern legal scholars everywhere. I gave that piece the working title “The Digital Futures of Legal Education,” intending by use of the plural "futures" to express the view that the relationship of digital technology to activities and actors as complex as those involved in legal education was far from that of simple cause and effect – technological determinism, if you will. While technology propels change it also, in my view puts challenging choices in front of key institutions and individuals – through which they shape the future, whether consciously or by default. In any event, the book's editor who also had the burden of translating my piece reported back that he had serious difficulty rendering the title's notion of alternative or contingent futures with a single German word. It is a disquieting notion but one absolutely central to the ideas I want to share today. To throw it in bolder relief I shall in this talk not rely on such nuance but will instead explicitly sketch multiple visions of the future.

One reason I am loath to predict a particular future for law and the legal profession is born of recent experience. In 1988 I set out to prepare a Social Security treatise that would take full advantage of and be designed specifically for electronic delivery (as different from a traditional law text, as a movie is from a novel, I said to myself with only the most general notions of what that meant). It seemed to me self-evident that a complete and integrated specialty law library organized by and accessed through expert commentary -- all contained on a single CD-ROM held such powerful advantages over print that once I had solved the intellectual and technical problems publication and distribution would be assured. That prediction hugely underestimated the resistance to change in the large commercial organizations that then comprised law publishing. While my CD-ROM was in time published and today enjoys substantial use in the field of Social Security law,3 its path to publication has been (and continues to be) a turbulent and uncertain ride because of dramatic changes in the commercial publishing sector about which I had no clue in ten years ago.

A second experience leading me to be cautious about prediction began in 1992. At that time, pursuant to the belief that law schools were uniquely positioned to be centers of research on and experimentation in the use of technology to distribute law, my colleague Tom Bruce and I established the Legal Information Institute at Cornell University.4 Our strong suspicion was that digital technology would permit law schools to be serious publishing centers. But did we anticipate how rapidly the Internet would become a pervasive communication medium or the range of users, content, and providers it would bring together in five short years? No. As a reminder, I recently thumbed through Ed Krol's The Whole Internet User's Guide and Catalog,5 published in September 1992. It describes the Cornell Law Gopher (our initial Internet experiment),6 introduces the World-Wide Web as a brand new information service,7 encouraging readers to “check it out,”8 and purports to provide an exhaustive catalog of information sites of all types on the Net.9 Krol's understanding of the Net was and is far deeper than mine. But his few lines in that 1992 book on “Where the Web is Going”10 bring a laugh today – for they undershoot the mark by miles and millions.

These experiences prompt me, as I have said, to see the future as plural in its possibilities, heavily contingent on institutional factors, and devilishly hard to read. That leads me to attempt to ground these speculations about the future solidly in the present. I have a strong sense that the future is already here, at least as much of it as one can hope to foresee – recognizable if we can but tease its strands out of their tangle with the far more familiar strands of the past.

To aid in that disentangling process I want to begin with a case study that those of us in law can approach with some detachment because it lies outside that field.

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