Sitting in the Harvard Law Library, where John Palfrey is about to give what I sense will be a landmark lecture, on the occasion of his chair appointment as Henry N. Ess III Professor of Law at Harvard Law School. So I’m taking notes here. [Later… John’s own notes — the abstract for his talk — are here. Also here. I also shot pictures, which are here. One of those follows.]
John is arguing for a new clearly connected system for sharing legal information. Presenting data in open, distributable and interoperable way.
One reason for doing this is cost. HLS spends $4 million on legal materials. HLS stives to have the world’s greatest collection of these at any given time. In theory at least, HLS bought everything in the law. There was no policy other than to buy it all. For a long time. Oliver Wendell Holmes surrounded himself in this. (His round desk is in the back of the room, and from it drinks will be served later.) Thomson Eest, Reed Elsevier (Lexis-Nexis), Wolters Kluwer, et.al. are the big sources.
Props to Henry N. Ess III, namesake of John’s new chair, and collector of many books that surround us now.
John reviews nine hundred years of history, from roots in manuscripts behind English common law, works by Littleton and Coke in the mid-teen centuries, then Blackstone in the eighteenth century, then Langdell and West in the nineteenth.
Now we are in the 21st century, and it’s digital. This is our new era, and we are just getting started.
Thanks to Google Books, more is available in digital form, but there are “scary bits” in it. Having this amazing digial library of Alexandria managed by a private entity without public interest at its core is troubling.
An intent: When we have committed for a journal article, we will have it in the public domain. This is a way of systematizing the ideal here.
The notion of putting all the legal information in the world in cyberspace is wacky yet not enough. We need to design it and do it deliberately in a way that is useful and makes sense.
Our students now are born digital. Teachers need to recognize this change.
We now presume that media will be in a digital format. iTunes is the top seller of music. YouTube is the top source of video.
But there is one anomaly in this story. Notice that students in the library outside this room use both laptops and paper casebooks — because the latter work with the three Bs: bed, bath and beach. So paper is still with us. But the presumption remains digital.
Changes in the computing system. One is cloud computing. Computing power and storage has moved to a large degree to places other than our own devices.
There are also changes in publishing. Books may will go toward digital. Sales of Kindle books at Amazon now exceed sales of print books.
We can now print books when we want them. We can now write, publish in print and online in close to real time.
The Digital Lab Team (featured at the Berkman Lunch today) is on screen now. And now we see many resources that are available through Google’s scholar portal. But one bad story that might happen here is that libraries turn into warehouses for print books. Students here today start with Google Scholar, then go to HOLLIS (the Harvard online library resource), and then to the physical library itself — or elsewhere.
So the effort perhaps should go not to completing collections, but to the interface to scholarship in general.
The current slide is a Stack View of books. “We can’t re-create the must” (in stacks). (I love the smell of library stacks. One of my favorite smells in the world.)
The problem is, there isn’t a stack. Most books go to the depository. But we can create a digital stack. And we can create a new way of looking for books and other sources that uses our familiar interface (the stack shelf), and also the serendipitous other advantages of digital connections and presentations.
Next slide, CALI.org and eLangdell.
There are tradtions other than our Anglo-American own. (A Chinese liberary slide is up now.)
Demerit of the system proposed: money. The courts don’t like these ideas. We don’t give enough money to our courts, and thus it is hard to make this possible. But if we gave a bit more, we would be able to overcome the klugey process we have today. We can drive costs out of the system.
Another: privacy. The redaction problem. By putting info in a single system, we might create combinations that are unhappy. Divorces and children combined with criminal law. Depositions and so on. So we need to be careful what we expose and what we don’t. Maybe depositions don’t go there. This is a possible enduring cost.
Another: authentication. Some librarians don’t like these ideas because printed-out stuff seems more reliable. We can do a better job digitally, but this will have a cost — a near-term one.
It is entirely possible that one might get information without context. There will be challenges to teaching in this way. But teachers are seeing this right now already.
Now for the merits.
First, putting things in XML format and making them downloadable (already started) can be enormously powerful
Next, scale. Much more is now being published. It takes less time to produce more, and we need to produce more, faster.
Next, we can create new code. think of the great search engines, and familiar leading code projects (yahoo, google, facebook, et. al.)… Many of these were created by students. Think about how tech can make hard-to-read stuff accessible.
Next, new connections. Visualizaitons, for example. (Points to Jeffrey Schnapp, with Visualization of Republic of Letters on the screen.) This kind of visualization will create needed curricular reforms.
Implictions: perception, practice, scholarship…
Perception: This might undercut what we see as the magesty of the law.
Practice: For judges, this could make them uneasy. Much as Charlie Nesson’s efforts to webcast court proceedings made them unconfortable. There might be a chilling in the way we practice the law. A possible side-effect might be a little of the medicine that judges’ kids are getting now around privacy. There is an extent to which it is possible that people who have lived in a protected environment might not see how digital natives live in an exposed environment. To see the world in a different way than their kids may have a distoring aeffect.
Scholarship. The slide: “For the rational study of law the black-letter man may be the man of the present, but thee man of the future is the man of statistics and the master of economics.” — Oliver Wendell Holmes, Jr.
We may see the rise and fall of the tradition and writing of treatises. Having individuals, without teachers in some cases, DIY-ing it…
Richard Suskind‘s The End of Lawyers? is on screen (is that Suskind is in the front row?). Everything Richard writes about will be amplified by the trends we’re talking about.
Is this the end of law libraries?, the slide asks.
On the way in we passed the stature of Joseph Story, who saved HLS, which was down to one student when he did. Here on the top floor you pass lots of students, more than ever before, studying in this space, where contemplation is possible. There is something about the physical space. (Thanks the dean for not taking away space.) Next, the portrait of Justice Taney, who wrote the Dred Scott decision. You can see the unhappiness on his face. Isaac Royall is on the wall here. Made money in the slave trade in Antiqua. Libraries help us learn from these people, these decisions, this history.
In the future no law library will do it all. We have a lot of law schools around here.
Not every regime in the world is stable. Here, more than most. For example, the pre-Soviet materials here make available what isn’t easy to find in Russia. People come here for materials not available in Turkey. We have legal information from around the world, saved for the ages.
The community of people here who provide access to knowledge is extraordinary. We have this notion that you can make a call and get what you want. The HLS team, on whom the many assets and benefits of this place rests, make it alive and accessible at key moments.
The game plan. The designers of this place — Langdell Hall — good as it is, needs to grow digitally. We have not put together information architects as good as the ones who designed the physical space. We need a design charette to make this right. We need to do right by the jailhouse lawyer, the prosaic litigant… It will be better though uncomfortable at first for the teachers and learners that we make these changes, providing access to justice through information.
Qustion from Jonathan Zittrain… We have SSRN having to implement anti gaming measures… Choice of what to think about, and what modality to think about… Is this an article, a blog?… What are your instincts about the future of legal scholarship? What are the right mix of advances that will excite the rest of the world?
JP: I want to defend the long-form argument, but first an aside: The greatest friend of this library is Charlie Donohue… What this will do is create pressure and opportunity for what will count as legal scholarship. We are looking at extension of text analysis, of (missed it)… We need these new modalities. We will see the gradual (shrinking of black letter law as a percentage of the whole).
Q: What are the implications for The Law? Is this the end of The Law? How much depends on what Holmes and others saw as a closed system, with a set of materials that constituted what The Law was and meant? In this new environment do we still have that? As more information becomes accessible for people to make arguments from, does this set new boundaries for what The Law is? What should now be in a law library rather than in a cloud? (Each question so far is a series of questions.)
JP: A great question, and not a new one. Back when printing was new, one of the debates was about this same thing. Is scholarly work in fact the law? So we already have this weird conflation. What we have now is the same problem. What is interdisciplinary work? A thoroughly connected system allows many answers to come. But we still have this problem that law itself is unfinished. If law itself is information, then what is information about the law? That’s where we get hung up. (Hope I got that right.)
Q: Access, and how is it paid for. Who controls what is available? How is it kept reliable? What is the future of what closed systems did so well?
JP: Students want more floors open more hours. In a serious way, what should be open is the platform that involves the primary and secondary law in a virtual sense. That’s the bedrock. There will be a much greater diversity than what we now get with Westlaw. Many more people looking at the same core of information through different lenses. We will still have open and closed spaces, but the former will be the larger context.
[Later…] John speaks slowly and carefully enough to follow with an outliner, which is what I did here. Go here for his original abstract (which is comprehensive). And watch MediaBerkman for the audio and video.