Equine considerations and computer law - reflections forty years on: the story of the founding of the world's first academic law journal on the subject of computers and law.

• Author: Baxendale, James

When I conceived the idea to start a law school-based academic journal focusing on the legal implications of computer use in the legal profession and the courts it was clear to me that it would be a challenge. I first had to get my arms around whether "computer law" was a genuine legal subject. Was the subject valid to teach as a course in law school? The ancillary question was, could an academic law journal based on "computer law" have legitimacy and succeed?

I was eventually persuaded that a stand-alone course or seminar on "computer law" (1) could be justified--and, by extension, that a quality academic journal committed to the subject (2) could prove a worthy addition to the body of legal literature. On the best days I was convinced that the venture would ultimately be validated in the marketplace and that eventually the Journal would be acknowledged in the way all good legal publications are--by citation as persuasive argument or authority in other scholarly journals and in judicial opinions. All this would prove to be the case; but in 1968 and 1969, there were days when this happy result was far from certain.

There were fellow student-critics (though never members of the faculty) who questioned the venture. They argued, in fine law student fashion, that what was proposed had the legitimacy of a law school course in automobile law; in short, limited value at best. The argument was that one cannot learn general legal principles from a study of narrow fact-dependent cases, i.e., those involving computers, computing or software, to the exclusion of the remaining universe of factual contexts. For critics, a law journal focusing on such a limited and proscribed subject would not be destined for success. But, because I strongly believed that the development of the computer over succeeding generations would prove to be at least as significant to society as the automobile, the skepticism did not deter our efforts. My thought at the time was that the computer's ubiquitous penetration of society posed real potential for unanticipated catastrophe as we rushed to rely increasingly on the technology.

THE LAW OF THE HORSE

More than twenty-five years after the "automobile law" criticism, the argument would be invoked again in a more assertive fashion--though I believe ultimately erroneously--at least as it applies to the development of the computer. In 1996, Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit cited the famous refrain of Gerhard Casper, the former dean of the University of Chicago Law School, (3) to argue in effect, that "computer law" as a stand-alone subject should not be credited. The argument was published in an article entitled Cyberspace and the Law of the Horse. (4)

As Judge Easterbrook noted, Dean Casper did not see the benefit in "Law of the Horse" courses (that is, courses then referred to somewhat pejoratively as "Law and ..." courses) unless they were "subjects that could illuminate the entire law." (5) Such specialized courses, especially those that would use a subset of cases based on limited case facts, would not warrant real legitimacy and were "suited to dilettantes." (6) Judge Easterbrook, himself a member of the law faculty at the University of Chicago, summarized Dean Casper's philosophy:

[T]he best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on "The Law of the Horse" is doomed to be shallow and to miss unifying principles.... Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses. (7) As a result Judge Easterbrook expressed doubt that a course analyzing the intersection of law and computers could be beneficial to legal discourse. According to Judge Easterbrook, if you "[p]ut together two fields about which you know little [you will] get the worst of both worlds.... Beliefs lawyers hold about computers, and predictions they make about new technology are highly likely to be false.... The blind are not good trailblazers." (8)

There is truth in the observations of Dean Casper and Judge Easterbrook. Certainly for law school curricula. But occasionally, a game-changer comes along and the development of the computer, and the trajectory (9) of that development, from the immediate post-World War II period was such a changer.

Just four years after the Easterbrook article was published, Lawrence Lessig, (10) a Harvard law professor, challenged Judge Easterbrook's theory in the aptly titled article, The Law of the Horse: What Cyberlaw Might Teach. (11) In his article, Professor Lessig, argued that the law of cyberspace (and by extension the term we used for the Journal, "computer law") is a unique and a worthy independent subject because the lessons learned from its regulation transcend the boundaries of computers and cyberspace. (12)

Later, we will consider how well the Rutgers Computer and Technology Law Journal did forty years ago both in setting parameters around the subject called "computer law" and in anticipating issues that the advent of the computer would present in all aspects of our lives. Were the Journal's predictions about the new technology inaccurate, or the Journal's predictions about the direction of change worthless, as Judge Easterbrook argued would likely be the case? He was talking about a span of five years; while we are talking about a span of forty.

THE FIRST ROOTS

I came to Rutgers Law School in 1967 and in my first year became a research assistant to Professor Vincent Fiordalisi, who had been the law school's librarian. At that time, much of the research into how computers could aid in legal research was done by law school librarians. Professor Fiordalisi was a member of a small influential group of like-minded law faculty and practitioners from around the country conducting this research. (13)

I had programmed and operated large IBM computers (then the size of very large rooms) beginning in my freshman year at Rutgers College in 1963, while working part-time for the high-energy physics graduate program at Rutgers University. Rutgers was just beginning a Department of Computer Science and my father, a mathematician and statistician-turned-computer scientist, was recruited as a professor. We both came to Rutgers in the same year. (14)

While my undergraduate major was economics I did take several computer science courses and, of course, learned a good deal from my father about computers and programming while growing up. When, as a junior, I decided on law as a career my father introduced me to Professor Fiordalisi at the Rutgers School of Law-Newark. One area in which my father was working was information retrieval in the medical field, but he knew other academics working on the analysis, research and retrieval of legal materials.

My decision to come to Rutgers for law school was based, in large part, on Professor Fiordalisi and the prospect that we could work closely together. By my second year in law school I had helped Professor Fiordalisi conceive a seminar in Computers and Law, and he invited me to help develop the curriculum and even to assist in teaching the course. At that time, we required every student taking the seminar to demonstrate sufficient knowledge of programming so as to conceive, program, and successfully run a computer program (then in the form of a set of punched cards) through the batch processing protocols of the Rutgers University--Newark campus computer center. It proved a popular activity and a welcome diversion from the typical law student's schedule.

THE RUTGERS COMPUTER LAW SOCIETY

During my first year in law school, in 1968, I had the opportunity to assist Professor Fiordalisi with his ABA committee work as a member of the ABA's Special Committee on Electronic Data Retrieval. As part of my work, I attended the national ABA Convention that year and met, for the first time, many of the country's leading academics and private practitioners in the developing field. After attending one of the committee meetings at the convention, it became apparent to me that a university-based academic law journal, focused exclusively on subjects related to computers, technology and law could succeed--not least because I had come to know some of the leaders in the field.

Later that year, the first concrete step toward creating a journal was taken when I started a group called the Rutgers Computer-Law Society (RCLS). The idea was that...