Electronically manufactured law.

• Author: Kuh, Katrina Fischer

TABLE OF CONTENTS I. INTRODUCTION II. WHY THE SHIFT TO ELECTRONIC RESEARCH MERITS ATTENTION A. Medium Theory and Legal Historical Scholarship B. Legal Realism C. Unpublished Decisions, Non-Citation Rules, and Federal Rule of Appellate Procedure 32.1 D. Existing Legal Scholarship and Empirical Data III. A DETAILED COMPARISON OF PRINT AND ELECTRONIC RESEARCH PROCESSES--IDENTIFYING SALIENT DIFFERENCES A. Electronic Researchers Are Not Guided by Key System Information to the Same Extent as Print Researchers with Respect to Identifying Relevant Theories, Principles, and Cases B. Electronic Researchers Do Not Encounter and Interpret Individual Cases Through the Lens of Key System Information to the Same Extent as Print Researchers. C. Electronic Researchers Are Exposed to More--and Different--Case Texts than Print Researchers IV. COGNITIVE PSYCHOLOGY-DERIVED PREDICTIONS ABOUT THE CONSEQUENCES OF A CHANGED RESEARCH PROCESS: DIVERSITY IN FRAMING AND TILTING AT WINDMILLS A. Principles and Theories of Cognitive Psychology 1. Influence of Labeling 2. Influence of Categories 3. Confirmatory Bias and Selective Information Processing B. Application of Cognitive Psychology Principles to Legal Research 1. Diversity in Framing 2. Tilting at Windmills V. THE BROADER IMPACTS OF DIVERSITY IN FRAMING AND TILTING AT WINDMILLS A. Diversity in Framing B. Tilting at Windmills VI. CONCLUSION I. INTRODUCTION

Law now arises, evolves, and is practiced and applied through an electronic medium. From top to bottom, the law proceeds through electronic channels. First, with respect to the content, dissemination, and digestion of judicial opinions, judges cite to Internet sources in opinions available online, bloggers post immediate reactions to opinions, and scholars upload analyses to the Social Science Research Network. In the formation of legal arguments and documents, attorneys research in electronic legal databases, use word processing to draft documents, exchange work product over e-mail, and file papers electronically. Additionally, in the development of case facts, smoking guns take the form of errant emails, document reviews mine electronic databases, and depositions are videotaped. Electronic resources affect even the way attorneys are hired and retained--students use Above the Law1 to vet firms, firms employ Google searches to vet law students, and clients use web profiles to vet attorneys. The recent furor following Kennedy v. Louisiana (2) over the Supreme Court's failure to discover that the Uniform Code of Military Justice authorizes the death penalty for child rape (3) underscores law's entanglement with the electronic medium. This oversight by litigants and the Court alike suggests a pitfall of electronic research. Researchers may have become dependent on the seemingly-inclusive "All Federal Cases" database; however, military cases do not appear in this database. That the omission was brought to light on the blogosphere (4) and quickly made its way onto the pages of the New York Times (5) and ultimately into a petition for rehearing (6) attests to the power of online legal commentary. In this new age of electronically manufactured law, the raw materials of law--case texts--increasingly reside in digital form and are studied by legal researchers using digital means. A description of the not-so-distant past when the raw materials of law were bound in hardcopy print illustrates the magnitude of this change:

Lawyers are probably more dependent upon the literature of their profession than their prototypes in any other field. They simply cannot function away from a working law library, because law books are not merely the repositories of secondary reference materials, but are the actual and indispensable source material of the law.... [D]ecisions as made and ... rules as enacted are not published and arranged on book shelves by subject matter, but by jurisdiction and date. Thus, there is an enormous and constantly changing mass of decisions and legislative rules. From these the lawyer must speedily and accurately extract the law applicable to his specific problem, so as to be able with some degree of certainty to predict the action of a court to which the problem may conceivably be presented. ... He who understands the why and how of law books has a very substantial advantage over him who does not. (7) This over fifty-year-old summary of the method and import of legal research, with its emphasis on law libraries and law books, shows the fundamental transformation of legal research. The print-based research process has given way to electronic research using databases such as Westlaw and LexisNexis.

Prior shifts in the communication of law, such as the advent of writing and print, contributed to the development of core legal concepts such as abstraction and precedent; the ongoing sea change in the way that attorneys find and access the law will likewise transform the law's practice and content. Indeed, finding the raw materials of law through the legal research process drives the legal enterprise and the development of the law, informing and shaping the arguments and decisions that attorneys make as advisers, gatekeepers, adversaries, and judges.

Scholars, anthropologists, and law librarians caution that the shift from print to electronic research will significantly impact the law in myriad ways. (8) To date, however, these predictions and warnings have fallen on deaf ears. Although many of the predicted impacts of the shift to electronic research should, if accurate, warrant a concerted response from the academy and profession, little effort has been made to critically examine and address the changes resulting from the shift in research process. Time for debate over the normative question of whether a shift to electronic research is "good" or "bad" may be long past. However, now is the time to understand the consequences of the shift to electronic research and manage those consequences head on.

This Article seeks to strengthen the case for the academy and the legal profession to pay heed to the consequences of the shift to electronic research, primarily by employing cognitive psychology to guide predictions about the impacts of the shift and, thereby, address a perceived credibility gap. This credibility gap arises from the difficulty and imprecision in postulating how changes in the research process translate into changes in researcher behavior and research outcomes. Applying principles of cognitive psychology to compare the print and electronic research processes provides an analytical basis for connecting changes in the research process with changes in researcher behavior and research outcomes.

Cognitive psychology generates two specific predictions about how electronic research will change the law. First, electronic research will lead to increased diversity in framing--divergence in the selection of the legal theory or theories through which to conceptualize facts, arguments, and cases. Second, electronic research will lead to more tilting at windmills (9)--the advancement of marginal cases, theories, and arguments. The Article explores how an increase in diversity in framing and tilting at windmills could affect the legal profession and the law. For example, in an adversarial system, judicial options for case resolution are largely defined and constrained by the theories proffered by counsel. Diversity in framing could expand judicial authority by providing judges with a wider variety of options for dispute resolution. This underlines the way in which counsel serve as gatekeepers by exercising judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require recalibration of the existing limits placed on lawyers in their role as gatekeepers. Recalibration may be necessary to prevent the dedication of client and judicial resources to lost causes spurred by lapses in judgment related to electronic research and to allow attorneys to advance, without fear of sanctions, thoughtful arguments designed to push doctrinal boundaries.

Specifically, Part II reviews existing legal theory, scholarship, and data that suggest that the shift to electronic research will likely have broad-ranging impacts. Part III compares print and electronic research and discusses three particularly salient changes in research process: (1) electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) electronic researchers are exposed to more and different case texts than print researchers. Part IV uses principles of cognitive psychology to examine these process differences and predict two major non-process consequences of the shift to electronic research: increased diversity in framing and tilting at windmills. Part V concludes by assessing the broader significance of these hypothesized consequences.

2. WHY THE SHIFT TO ELECTRONIC RESEARCH MERITS ATTENTION

   Legal research is a cornerstone of the legal process and the development of the law, (10) and electronic research effects obvious changes in the way that lawyers conduct legal research. (11) However, while the mechanical differences between the conduct of print-based research and electronic research are apparent, the conclusion that these differences will generate non-process impacts (12) on the law and the practice of law (13) does not necessarily follow. (14) Is there any reason to think that the shift to electronic research will have broader impacts beyond the niceties of individual researchers' practices? Namely, will it give rise to changes in researcher behavior and research outcome that influence the decisions that attorneys make, the content of their argument and analysis...