Panel discussion: changes in American life.

• Position: Public Understanding and Perceptions of the American Justice System - Panel Discussion

PROFESSOR THOMAS E. PATTERSON(**): Our panel will explore changes in American life and their impact on the public's perceptions and understanding of the justice system. It is a large topic. Two years [ago] at the Kennedy School, we asked the same question about the political system. Two books later and countless seminars beyond that point, we are still talking. I don't think we are going to answer a lot of questions up here this morning, but I hope that we can lend some context and definition to the problem.

Rather than introducing all the panelists at once, I'll introduce them just before their first speaking opportunity. It is a pleasure to start with our presenter, Roberta Katz. She is senior vice-president and general counsel of Netscape Communications and was recently named by the National Law Journal as one of the fifty most influential women lawyers in America. She will speak for about twenty minutes, drawing from her acclaimed work, Justice Matters, which derives from her experience as a lawyer and also her training as a cultural anthropologist. She holds a Ph.D. from Columbia University. Roberta.

MS. ROBERTA KATZ: It is a pleasure for me to be here this morning. This is a very illustrious group. When I came in the back, I thought, oh, this is a wonderful opportunity to speak to a lot of leaders in the bar and in our society. The issues that we are talking about at this conference really do require leaders to stand up and start acting. What I want to talk about is technological changes in American life and how they are affecting and will continue to affect the American civil justice system.

Before I start talking about those changes, I want to just set the table. I want everyone to stop and think about how extraordinary these times are. We are living in a time of very, very fundamental technological and social change. To give you a perspective on that, I would like for you to think for a minute about when you were in high school and when you opened your history books. We all learned about the Industrial Revolution. We learned about how wrenching it was for people who had to leave their farms, had to leave their extended families, to move into the cities, and had to build new institutions. Urbanization was a big process. It was a wrenching process. Speaking for myself, I remember reading these books and thinking, boy, thank goodness I don't live in times like that. Well, the reality is, we live in times like that. We don't recognize it because we are living through it. We get up every day. We get dressed. We send our kids off to school. We go to work. We make dinner. We come home. We're putting one foot in front of the other just getting through the day, and we don't stop to reflect on how fundamentally our lives are changing. It is something that is important. It is important for us to stop and recognize that we are very much in the process of building the future. So, what is happening is that, with our current transition from what is, in essence, an industrial-based society to an Information-Age-based society, we are reinventing virtually everything we do. Again, people don't stop and think about that enough.

I would say that the transition from an agrarian to an industrial society was wrenching, but the transition from an industrial to an information-based society is even more wrenching because we are dealing with globalization. We are dealing with media that are rapid. This change is happening very fast. When I tell people that Netscape, the browser, didn't exist four and a half years ago, and all that's happened with the Internet, the Web and all those websites that are out there, this is all a phenomenon that's occurred in less than five years, people just look at me and say, you're crazy. But that is, in fact, the truth. So when I say we are reinventing everything, I want to just give you a perspective.

We have started in our culture with business. Business is usually ahead of the game because they are profit and efficiency oriented. If you think back not that long ago, business was oriented to a bureaucratic, 9 to 5 work pattern. That work pattern derived from a factory-based mentally where the workers on the production line had to work in concert and had to take direction from the managers. That was the nature of production in an industrial context.

Then, think about the kinds of changes that have taken place in business in the last several years. We started with the notion of management by walking around. That meant that the chief, the boss, wasn't just there giving direction, the chief was coming out of his or her office and going to talk to the workers, getting input from those in the trenches. That was a novel concept. Then, we added the notion of reengineering, which meant it was okay to do things in a non-bureaucratic, team-oriented manner. Today, in business, we are well under way to a totally different way of getting the job done. We are focused on individualized learning and team-based production. So, you get people like Peter Drucker who are talking about this and saying we have the growth of a phenomenon called information workers.(1) Many of those workers never go into a central office. That is a huge contrast from, say, the 1950s. The point is that we have had to revise things. We have had to revise how we get things done in business in order to take advantage of what the new technology gives us. Computers allow us to do things in a team manner and to have individualized learning. We don't need to necessarily have centralized direction down. So, the social structure and the social institution of business are dramatically changing because of these technological changes.

You can see the same thing in education where we have introduced some very fundamental changes. I think in education we haven't begun to see all that is going to happen. The old factory model was the teacher, at the front of the classroom lecturing to the thirty students. The learning that came into the classroom was really from the teacher. Think about today. We have computers in the classrooms, and, most importantly, we are teaching the kids to solve problems through teamwork. I don't know how many of you have students in elementary, junior, and senior high right now, but I was stunned when my kids first came home and said, "Hey, Mom, my grade is not going to depend on what I do, my grade is going to depend on what this team does." Assignments are now given frequently to teams of students, not to individual students. This is how we are training the information workers of the twenty-first century. We are training them to work very differently.

We see the effects of the Information Age all around us. With the evolution of the Internet and the populating of cyberspace, even the local neighborhood doesn't play the role that it used to. We find friends halfway around the world. In fact, there are some people who have bridge partners and play a regular game of bridge with people that they have never seen, never talked to, but whom they consider friends [who] live halfway around the world.

If you think about the latest discoveries in the biological and medical sciences like cloning, we are having to rethink very fundamental concepts, long-standing views about birth, death, and sickness. They are all being called into question. These are not just revolutionary, they are explosive changes, and we are all dealing with them.

So, we know these fundamental changes are occurring in the businesses, in the schools, in the hospitals and in the neighborhoods. What we haven't come to grips with is that the legal system is also going to have to change in some very fundamental ways if we are going to accommodate these changes that are occurring in the rest of our lives. I think the reason we haven't fully grasped that this change is coming is that we tend to think of our legal system as sacrosanct. We think of it that way precisely because of its importance. It does underlie every other institution. So the thought that we might start fiddling with that is a scary thought.

The legal system and our laws define and put a structure on just about everything we do, from birth, marriage, and parenting to death. When you stop and think about it, you realize that our laws are really nothing more than a societal handshake. That is to say, we come together as a culture, we decide what limits we will place on ourselves for the good of the whole, and we turn those limits into laws. In other words, it is a man-made system.

The legal system itself is also a man-made system or humanmade system. It is not the product of divine dictates. It's a social institution. Just like we have an economic system and a political system, we have a legal system [which] is here for us to figure out how to live harmoniously and productively. So, from that perspective, it stands to reason that as the society changes fundamentally because of this technological push, the laws and the legal system itself have to be modified. So from a lawyer's perspective, that's why the present time is particularly challenging, because we lawyers are taught to uphold the existing systems. I mean, think about what stare decisis is. We look back in order to make decisions about the present. We are in a time right now of rapid and profound social and economic change like we have never experienced before in this country. As a result, we have to quickly learn how to look forward, how to adapt the system looking forward, not just back.

Until this decade, I think most Americans considered their courts to be places where justice would generally be served. I think there was a basic belief that if a wrong had occurred, it would be redressed, that a balance would be restored. It was very interesting for me to hear the last panel...