A couple of years ago, McSweeney’s published a one-act play written by John Hodgeman titled Fire: The Next Sharp Stick? A Conversation Among Cavemen. It is a humorous allegory of change relating to discourse and technology. I suggest reading the entire play, but here’s an excerpt:
ONE [WHO HELPS THE HAIRY ONE]: Do you want a Stick That Tastes Good to Gnaw On?
MAKER [OF FIRE]: No, thanks. I just had one. I’m a bear if I don’t have one before Hot Part of the Day.
ONE: (Doesn’t understand, a little afraid.) Excuse me?
MAKER: (Laughs.) Sorry. Sorry. I’m not actually a bear. I just mean that I’m like a bear if I don’t have a Stick That Tastes Good.
ONE: You pretend to be a bear?
MAKER: No. I feel like a bear feels when he wakes up. You know, grumpy, impatient.
ONE: Do you become a bear when you say it?
MAKER: No. I just say it.
ONE: (Still doesn’t understand.) Oh. OK. I see. Well, in a way, that’s exactly why I asked you to come down here. As you know, Ten Men Who Help Each Other But Are Not Brothers is a very old and established firm.
MAKER: I do know.
ONE: I mean, for me, it’s a real honor to be associated with the Hairy One and to be his helper. The Hairy One’s a visionary, you know. But he’s—how do I say it? He’s older than the Old One, and, as a result, I think that Ten Men needs to think about its future and think about how it can stay competitive in changing times.
MAKER: Naturally, I agree.
ONE: When we met by the Sticky Tree, I immediately thought, Here’s a guy who’s ahead of the curve. Here’s a guy who maybe can help Ten Men make the transition into That Day That Isn’t This Day but Also Isn’t the Day Before or the Day Before That.
MAKER: At the Shallow Pond With a Terrible Odor, we call it “tomorrow.”
ONE: Really? “Tomorrow”? Very clever. But the point is, we were talking about fire, and it seemed to me after we spoke that this could be just the thing to carry Ten Men into “tomorrow.”
MAKER: Well, there’s no question that fire has a lot to offer any firm, Ten Men included, and I’m happy to show you why. But I think you need to think seriously about what your fire needs are. The truth is, this technology is so revolutionary that I think the real question won’t be whether fire is right for Ten Men but whether Ten Men is ready for fire.
When talking paradigm shifts (and fire was definitely one of them), MAKER’s observation cannot be understated. The Next Sharp Stick tells us that Ten Men indeed were not ready for fire. Their ascension rested largely on the improvement of the blunt stick, it’s extension immediately recognizable to users. With no need for re-training, adoption of the new technology was a piece of cake and motivation high, given its obvious killing efficiencies. But for a few, the sharp stick was still too different and its benefits weren’t enough to convince them to give up the blunt stick. After all, we’re more comfortable with what we know. Now along comes fire, billed as the sharp stick of the future, and the creators of the sharp stick balk. Why? Because fire was not an obvious extension. It was, in the words of the One, “[l]ight, heat, pain—all in one. It’s all those things. It’s a multi-thing.” The cavemen lacked the ability to make the wildly unknown relatable, so the utility of fire had to be denied. And, of course, the Maker had to be killed.
As educated people, we like to think of ourselves as the Maker of Fire, but I suspect most of us are a bit closer to the One Who Helps the Hairy One, wanting change and not wanting it. A Serbonian Bog of sorts, I suppose. We can embrace extensions, but are unable to extricate ourselves from them and embrace something wholly new.
Welcome to 21st Century legal research.
As I argued in an earlier post, the vast majority of legal research over the last 100 years appears to be confined to answering the question of “what is the authority for that point?” Our attempts to answer this question have led to the creation of new systems (e.g., National Reporter) and the adoption of new technologies (e.g., microforms, electronic search). While these systems and technologies—tools of the trade—have become more sophisticated as we’ve moved away from a print-only environment, their evolution has been largely adaptive. The latest version of these tools, particularly WestlawNext, seem to be trying to break away from the adaptation cycle and begin making some predictions about systems and functions that will an enable a user to successfully cope with the future. These predictions, though, still seem to be more reactionary, rather than revolutionary. In other words, we’ve been moving from a blunt stick, to a sharp stick, to a sharper stick, all the while becoming slightly more efficient at killing (READ: research).
But where’s the fire? Where is the next sharp stick?
Before we get to that, let’s consider why we’ve only been moving along the evolutionary stick path. If you look at the developmental history of our tools, most of them have been made relatable (THINK: stick to sharp stick) through the same metaphor, namely, the library. And metaphors have a profound effect on us.
In 1993, Ethan Katsh—author of Law in a Digital World—wrote about metaphor and the future of legal research:
A metaphor is a ‘cognitive hook’ that can help a user to understand something unfamiliar by using terms related to something familiar. … The reason for this is that metaphors and other figures of speech can shape how experience is conceptualized. Metaphors … are pervasive in everyday life, not just in language but in thought and action. Our ordinary conceptual system, in terms of which we both think and act, is fundamentally metaphorical in nature.
The concepts that govern our thought are not just matters of the intellect. They also govern our everyday functioning, down to the most mundane details. Our concepts structure what we perceive, how we get around in the world, and how we relate to other people. Our conceptual system thus plays a central role in defining our everyday realities. If we are right in suggesting that our conceptual system is largely metaphorical, then the way we think, what we experience, and what we do every day is very much a matter of metaphor.
A designer of software interfaces has expressed a similar view and noted that:
‘A word that is used in a metaphorical way is just the tip of the iceberg. A metaphor is an invisible web of terms and associations that underlies the way we speak and think about a concept. It is this extended structure that makes metaphor such a powerful and essential part of our thinking. Metaphors function as natural models, allowing us to take our knowledge of familiar, concrete objects and experiences and use it to give structure to more abstract concepts.’
Metaphors can thus clarify, but they can also obscure. [Some commentators] point out that ‘[i]n allowing us to focus on one aspect of a concept … a metaphorical concept can keep us from focusing on other aspects of the concept that are inconsistent with that metaphor.’ …
Katsh, Law in a Digital World: Computer Networks & Cyberspace, 38 Vill. L. Rev. 403, 467-69 (1993). Katsh’s observations reveal the dichotomy of metaphor, namely, that it is both a TOOL and a TRAP. David Gelernter and Lee Smolin give us a all-to-familiar example of this division in Gelernter’s The Second Coming — A Manifesto. Gelernter observes:
Metaphors have a profound effect on computing. The desktop metaphor traps us in a ‘broad’ instead of ‘deep’ arrangement of information that is fundamentally wrong for computer screens. Compared to a standard page of words, an actual desktop is big and a computer screen is small. A desktop is easily extended (use drawers, other desks, tables, the floor); a computer screen is not.
Smolin, in his response to Gelernter’s Manifesto, disagrees:
It is true that the … operating system is based on the old fashioned metaphor of a desktop and filing cabinet. [¶] What is good about the desktop is that it is so limited. I can have piles of windows open at once, but I know where they all are. When there are too many I know I have to close some, which forces me to do a bit of cleaning up. It is like having to clean up one’s desk when it overflows. Only unlike my real desk, which I can simply ignore, I do have to deal with my desktop and clean it up from time to time to keep working. I find this very useful as it enforces a minimal level of organization in my work habits.
So for one, the metaphor is a TRAP. For another, the metaphor is a TOOL. For both, though, the metaphor affects behavior. And in the realm of computer assisted legal research (CALR), I think the metaphor (i.e., library ) has, unfortunately, become a TRAP. And this trap has resulted in what Jaron Lanier, author of You Are Not A Gadget, refers to as “lock in:”
The process of lock-in is like a wave gradually washing over the rulebook of life, culling the ambiguities of flexible thoughts as more and more thought structures are solidified into effectively permanent reality. [¶] Lock-in … removes design options based on what is easiest to program, what is politically feasible, what is fashionable, or what is created by chance. [¶] Lockin-in removes ideas that do not fit into the winning digital representation scheme, but it also reduces or narrows the ideas it immortalizes, by cutting away the unfathomable penumbra of meaning that distinguishes a word in natural language from a command in a computer program.
Lanier, You Are Not A Gadget, pps. 9-10 (2010).
For as long as I can remember, CALR systems have relied on the concepts of “libraries.” Katsh again:
More recently, we have labeled the devices that transform electrical impulses into words on paper as ‘printers,’ and electronic databases as ‘libraries.’ These characterizations, representing obvious frames of reference from the print era, are understandable attempts to place new modes of processing and interacting with information in a familiar framework and to make users feel comfortable with the new technologies.
The library metaphor, as a TOOL, not only allowed us to understand digital content as a representation of print, it also brought forward concepts of how these documents are managed.
The library metaphor focuses on the management of … documents. This introduces librarians, catalogs, classification schemes, and browsing … and has inspired several researchers to investigate various retrieval schemes based on faceted classifications, keywords, or free-text document retrieval.
Griss, Software reuse: From library to factory, 32 IBM Systems J. 548, 557 (1993). Sound familiar? It should because its Westlaw, Lexis, and every other CALR vendor. The organization of legal content online has mirrored that of the physical library for decades. Initially, the metaphor allowed CALR vendors to organize everything into very discrete stacks (you know them as databases)—ALLFEDS (all Federal case law), TX-STAT-ANN (Texas Statutes Annotated), CA-JLR (all California journals), and on—so we could relate to them, understand the digital extension of our physical space. For every state, there was (and is) a stack of information, organized by jurisdiction, type, and subject matter. It is an online library, except that it abandons librarians (first name basis is a waste of time, right?) and library science in favor of Boolean, Natural Language, and now Plain Language or Intuitive search (i.e., retrieval schemes). Before WestlawNext though, everything was organized in very specific electronic stacks, and if you wanted to find anything, you had to select the right stack and ask, “Can I please see what you have related to {insert query here}.” But it took Thomson Reuters Legal (and presumably Lexis) the last five years to come to the same conclusions that Katsh observed 15 years ago:
A key obstacle to access in the print environment is a lack of knowledge of the subject matter and of the manner in which the subject matter has been organized. With print, one ordinarily needs to know something about the subject matter in order to find out more about it. The knowledge threshold is much less in the electronic environment, however, and if there are difficulties in accessing electronic information, they are much less related to what one already knows, because words are more important than categories in searching databases. What is currently a limiting factor that is more important than awareness of content and categories is the poor design of software.
Katsh, Law in a Digital World: Computer Networks & Cyberspace, 38 Vill. L. Rev. 403, 477-78 (1993). So, the response has been to redesign the software (ENTER STAGE RIGHT: “Hi, I’m WestlawNext”), but not change the metaphor. We are now locked in to a system that perpetuates the library metaphor. It has become a TRAP. Every CALR system continues to create electronic stacks for the Law (albeit more broad now): cases, statutes, rules, administrative orders and guidance, charters and ordinances, court orders, secondary sources, etc. Sure, the sources of each stack are no longer called “digital libraries,” but rather “content categories,” yet they are still independent stacks you have to navigate to “build” your answer. Federated search is great, but it is not a “multi-thing.” And CALR systems, no matter how Web 2.0 or future-point-oh they are, will continue to be single-use tools because each one is seeking to provide an answer to the same 100-year old question, what is the authority for this point? And to do it, they give you a library.
According to Katsh, we need to think about the space we are operating in:
As a result of the different kind of space that one finds himself or herself in when using electronic sources of information, the use of the word ‘library’ to describe this space may be more confusing than illuminating. The word ‘library,’ when it was first used by LEXIS, may or may not have been assumed to fit the dictionary definition of a library and to be an appropriate use of the term. Given the great difference between electronic ‘libraries’ and print libraries, however, I would suggest that it is necessary to begin to view the word ‘library’ differently, to consider it as a metaphor rather than as a label—a device to encourage people to think about one object in terms of some other, more familiar, object. Yet, if one considers the word ‘library’ in this manner, it is apparent that it is an inappropriate figure of speech because it misleads users about the nature of the space in which they are.
Katsh, Law in a Digital World: Computer Networks & Cyberspace, 38 Vill. L. Rev. 403, 467 (1993). This was Katsh’s recommendation in 1993. Think about how much the space has changed since then, and you realize that the metaphor must change if we are to find the next sharp stick.
To change the metaphor though, I feel like we need to take a more pedestrian view of the law. Holmes wrote in 1881 that “[t]he life of law has not been logic, but experience.” Now he would shit a brick for the parallel I’m going to draw here, but in teaching legal analysis (and by extension, research), I think we deny much of experience. Students are rarely encouraged to look to meat space for current, real-time issues, scour PACER for sample forms, read blog posts for context (although I recently learned that they could get briefed cases on Wikipedia), and the like. Yet, attorneys have for decades relied on newsletters and verdict sheets to get a better understanding of trending issues and theories and economic values for a given set of facts. More recently, attorneys have told me they Google fact patterns similar to cases they’ve taken to see whether they have resulted in lawsuits, settlements, verdicts, etc. I now see lawyers on Twitter posting and re-tweeting news accounts (and blog analysis) of accidents, catastrophic injuries, product defects, and the like for the benefit of the community. The Web has changed legislative history research as well. All of this data reflects the richness of experiences affecting or being effected or potentially being effected by the Law. But despite the value of such data, it cannot be found when one asks for the authority because it doesn’t exist in the library. It is hard to find experience when you are focused on “on all fours.”
In an attempt to get us to consider new metaphors that might affect how we build and design future CALR systems, I would suggest we start by changing the question of what is the authority for this point? And for that, I would start with a statement made by John Wigmore made nearly 70 years ago:
It all depends on how at the moment we are thinking of law as an operative fact in its relations to the world of data.
My Philosophy of Law: Credos of Sixteen American Scholars at 315 (Boston Law Book Co. 1941). Before we go any farther, I am not a legal philosopher, so this is not a debate on schools of thought regarding the matter. Instead, I’m going to insult Wigmore as much as I did Holmes and offer up a modern restatement in classic Gen X fashion: “What do you want to do with the law today?” Although it is a total ripoff of Microsoft’s decade old ad campaign, it is a concept that is perfectly comfortable in the world of digitized Law (and Wikipedia, blogs, Facebook, Twitter, Tumblr, etc.), and one that can be made meaningful by a new metaphor for CALR: the Lego metaphor.
In Part 2 of this post, I will discuss why I think the Lego metaphor could lead us to fire.
[Image (CC) by timtom.ch]
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