The Lawyer as Information Manager

• Author: Steven C. Bennett
• Position: Partner in the New York City offices of Jones Day
• Pages: 729-744

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THE LAWYER AS INFORMATION MANAGER

BY STEVEN C. BENNETT^[_1]

It may be easy to regard the impact of computer technology on legal information management as “simply a matter of lawyers being able to do what they used to do, only faster and more conveniently.”¹Yet, the true ramifications run far deeper. A recent study found that law review articles containing at least one web citation increased from 0.57 percent in 1995 to twenty-three percent in 2000, while the average number of web citations in such articles increased from 1.9 to 10.45 per article.²Computer-based legal research databases including Westlaw and Lexis “today incorporate object-oriented views of data whereby different attributes can be selected and combined on the fly for different purposes,” unlike print sources of old, “where relations between classes had to be decided once and for all at the time of original creation.”³The industry involved in packaging and distributing legal information is worth more than five billion dollars per year and has grown at an annual rate of five percent in recent years.⁴

Competition has driven the rise of major legal document databases, just as competition continues to fuel the technology boom.

Many lawyers recognize and appreciate technology’s influence in their everyday work. Many others, however, have yet to grasp that an entire paradigm for the legal profession has been altered and remains in motion. This article looks at the rapidly evolving technological environment and its effects on the practice of law, and also outlines a lawyer’s responsibilities in acting capably as an information manager in the years ahead.

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[_1] The author is a partner in the New York City offices of Jones Day. The views expressed are solely those of the author. Steven Nam, a summer associate at the firm, assisted in preparation of this article.

¹F. Allan Hanson, From Key Numbers to Keywords: How Automation Has Transformed the Law, 94 LAW LIBR. J. 563, 563 (2002).

²Mary Rumsey, Runaway Train: Problems of Permanence, Accessibility, and Stability in the Use of Web Sources in Law Review Citations, 94 LAW LIBR. J. 27, 32–33 (2002).

³GEOFFREY C. BOWKER & SUSAN LEIGH STAR, SORTING THINGS OUT: CLASSIFICATION AND ITS CONSEQUENCES 292 (1999).

⁴Ian Gallacher, Forty-Two: The Hitchhiker’s Guide to Teaching Legal Research to the Google Generation, 39 AKRON L. REV. 151, 175 (2006).

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I. TECHNOLOGY IN MANAGING LEGAL INFORMATION: A BRIEF

HISTORICAL TOUR

The narrow black diorite column on display within the Louvre in Paris is hardly an imposing sight—about eight feet in height,⁵it possesses neither larger-than-life dimensions nor much artistic grandeur. Yet, the Code of Hammurabi⁶proved to be a colossus in history. With about fifty-one columns of text, its core is a long list of laws with the pattern of a conditional “if” followed by specific consequences.⁷The Code represented a break from long millennia of oral laws and tradition, its phrasings “not guided by principles of abstraction,” but rather “seeking to formulate certain rules,”⁸permanently engraved into stone for all to see.

Across ancient Egypt, papyrus was the medium chosen for judges to keep records of their decisions, so that they could be referred to as precedent.⁹Egyptian laws were also at least partially codified and based on a common sense view of right and wrong, in accordance with the concept of “Ma’at,” which represented a fixed, regular, routine, and natural order in the universe.¹⁰

In the West, the initial Twelve Tables of Roman law were recorded on bronze tablets.¹¹Drafted by ten patrician commissioners,¹²these tables included a collection of definitions of various private rights and procedures akin to a bill of rights,¹³and began with the proper procedure for a summons to court.¹⁴The Twelve Tables reflected part of a continuing _______________________________________________________

⁵ROBERT FRANCIS HARPER, THE CODE OF HAMMURABI KING OF BABYLON ABOUT 2250
B.C. xi, (2d ed. 1904); MARC VAN DE MIEROOP, KING HAMMURABI OF BABYLON: A

BIOGRAPHY 99 (2005).

⁶HARPER, supra note 5, at xi. King Hammurabi “was the sixth king of the First Dynasty of Babylon and reigned for fifty-five years, about 2250 B.C.” Id. at xi–xii. The exact composition date of the Code is not known; it is estimated that it was composed after Hammurabi’s thirty-eighth year of rule. VAN DE MIEROOP, supra note 5, at 100.

⁷VAN DE MIEROOP, supra note 5, at 99, 102.

⁸Id. at 102.

⁹RUSS VERSTEEG, LAW IN ANCIENT EGYPT 9, 24 (2002).

¹⁰Id. at 23.

¹¹I CORPUS JURIS CIVILIS: THE CIVIL LAW 10 (S.P. Scott trans., AMS Press 1973) (1932).

¹²Id. at 8.

¹³See id. at 11.

¹⁴Id. at 57.

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pattern in which civilizations present and pass down their laws with whatever technology is most convenient.

Johannes Gutenberg’s movable type printing press¹⁵overshadows in popular consciousness a later nineteenth century English invention that bore immeasurable consequences for the legal field—the steam press,¹⁶

with its ability to churn out newspapers and books to a mass audience. The press would further undergird the common law tradition, which originated in the twelfth century as judges under King Henry II discussed their cases and recorded their decisions, developing stare decisis principles in the process.¹⁷

When the American colonies declared independence, among the first “legislative acts they took was to adopt ‘reception statutes’ which enabled their courts to receive and develop the English common law in accordance with the public policy of [the respective] states,”¹⁸rendering official the common law tradition in the United States. In turn, the first case-method textbook was authored in 1871 by Christopher Columbus Langdell, the Harvard Law School dean who opined that “cases which are useful and necessary . . . bear an exceedingly small proportion to all that have been reported. The vast majority are useless and worse than useless for any purpose of systematic study.”¹⁹By classifying and arranging within his contracts casebook only cases that were influential,²⁰Langdell revolutionized legal studies. But it was technological advances in the printing press that made possible the legal casebook’s widespread publication and use.

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¹⁵Johannes Gutenberg invented the printing press and the movable type some time around 1450. Peter Linzer, From the Gutenberg Bible to Net Neutrality—How Technology Makes Law and Why English Majors Need to Understand It, 39 MCGEORGE L. REV. 1, 4 (2008).

¹⁶See ALEX WRIGHT, GLUT: MASTERING INFORMATION THROUGH THE AGES 165 (2007).

¹⁷See REEVES’ HISTORY OF THE ENGLISH LAW 204–06 (W.F. Finlason ed., 1999) (1869).

¹⁸Glenn G. Lammi & James Chang, Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws, LEGAL BACKGROUNDER (Wash. Legal

Found., Wash., D.C.), Dec. 17, 2004, at 1.

¹⁹C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS vi (1871).

²⁰Id. at vii.

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II. EVOLUTION OF THE MODERN LAWYER AND THE INFORMATION

TECHNOLOGY REVOLUTION

Within a decade of the publication of Langdell’s first casebook, West Publishing Company founder John West combined his existing publication of Minnesota legal opinions with opinions from five bordering states, to form a series called the North Western Reporter.²¹West gradually added new sets of volumes covering federal opinions and opinions from the rest of the United States; thus, the National Reporter System came into being.²²

When it came to information management, as Langdell had noted, the sheer breadth of available case law helped no one.²³Fortunately, the legal profession found its standard bearers in the citation and pagination system of West reporters—West’s American Digest System was powerful enough that it “may have saved . . . the common law from what looked like its inevitable demise”²⁴through effective organization of a mass of court opinions.

The growth of law school libraries paralleled the rise of the West System. From very modest beginnings—the endowment for Harvard Law School’s first library when it opened in 1817 was just five hundred dollars,²⁵a small sum even in those days—the law school library today is typified by Stetson Law School’s law library and legal information center. It “occupies 58,000 square feet, houses [approximately] 345,000 volumes, and cost nearly $8.5 million to construct.”²⁶At the library’s dedication ten years ago, Supreme Court Justice Ruth Ginsburg noted in her remarks that even the forward-looking Dean Langdell assumed that law school libraries would remain a repository for casebooks and little else.²⁷But by the start of the twentieth century, the growth of interstate transportation led to a demand:

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²¹For a good history of West’s founding years, see WILLIAM. W. MARVIN, WEST

PUBLISHING COMPANY: ORIGIN, GROWTH, LEADERSHIP (1969).

²²Id. at 46–57.

²³LANGDELL, supra note 19, at vi.

²⁴Robert C. Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 CAL. L. REV. 15, 25 (1987).

²⁵Ruth Bader Ginsburg, Dedication, Remarks in Celebration of Stetson’s Law Library and Information Center, 28 STETSON L. REV. 231, 231 (1998).

²⁶Id.

²⁷Id. at 232.

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in each state for legal materials from other states. Along with two world wars, and subsequent endeavors to achieve a lasting peace, came an interest in and a need for foreign legal materials. And along with the growth of the U.S. federal government, . . . a host of materials dealing with social and economic regulation...