Thursday, December 15, 2005

The Shape of the Law

Many long-time practitioners talk about understanding "the shape of the law." See, for example, The Corruption of Legal Research, by Scott P. Stolley in For The Defense, April, 2004, pp. 39 - 51. Stolley is a partner in the Dallas office of Thompson & Knight, LLP, and is writing about young associates who cannot locate cases that he knows are there:

My computer-dependent associate reported that she could not find a case. It seemed obvious to me that some case would support my argument that the plaintiff's lawyer could not succeed with his tactic. So I went to the books, and found a suitable case in about 30 minutes. .... When I showed the case to my associate, she expressed shock: "How did you find that? That's crazy -- to find that one sentence in the sea of cases." You would have thought that I was a sorcerer." (Stolley at p. 40)

Stolley is speaking about two things here. He is complaining that the young associates do not know how to do book research, and depend entirely on computerized research. The other thing he complains of is that because of this, they do not understand that the law has a shape. They lack, in his view, and mine, a sense that the law is a living body formed over generations of give and take. Stolley puts it this way:

They also don't experience the lively banter of lawyers who are hunkered down in the library, quizzing each other as they tease the law out of the books. Perhaps worst of all, they miss the musty smell of history wafting from a 100-year-old West Reporter. Staring at a sterile computer screen, they don 't get a sense of the law's development -- the sense that the law "stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left." Learned Hand quoted [sic] in Frost-Knappman & Shrager, The Quotable Lawyer, at 55 (ref.ed.1998). (Stolley at p. 41)

Anthropologists seem to have no problem thinking about tools shaping the human mind. Why do we in the field of law and librarianship seem so unwilling to think that our tool, the computer might be shaping our minds? And of course, our minds shape the law!

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