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A History of Legal Informatics: An Introduction to the Special Issue

Abdul Paliwala [1]

1. A Definition

The term Legal Informatics is not an easy one to pin down. Erdelez and O'Hare define it in the following way:

The American Library Association defines informatics as "the study of the structure and poperties of information, as well as the application of technology to the organization, storage, retrieval, and dissemination of information." Legal informatics therefore, pertains to the application of informatics within the context of the legal environment and as such involves law-related organizations (e.g., law offices, courts, and law schools) and users of information. [2]

The advantage of this definition is its breadth, in the sense that it does not make a rigid distinction between high end uses of technology such as artificial intelligence (AI) and the apparently more mundane such as word-processing and databases. At the same time it distinguishes Information Technology Law or the substantive law relating to the use of information technology from Legal Informatics; the latter involving the application of information and communication technologies to law.

In this work, the authors, who have all had major roles in the development of legal informatics, chart the history of development of a specific aspect of the subject.

2. Why a history of Legal Informatics?

The trite answer that one writes about the past in the present in the name of the future is given greater resonance by the fact that many of the contributors to this volume sense a crisis; that the many achievements chronicled in this volume are paralleled by stories of promise not fulfilled, of pathways not followed, of wrong pathways followed. There is need for renewal of effort by lawyers, IT practitioners, academics and students to take information technology into new fulfilling directions.

Thus Peter Martin assesses the US judiciary's take up of technology:

Judged against such visions and the changes digital technology has brought about in important commercial areas over the past decade, the take-up of digital technology by US courts has been both slow and uneven.

Similarly Richard Susskind reflects on challenges facing lawyers:

But, if I am really honest, and this is where the negativity can creep in, these success stories remain exceptional. In the words of the Canadian science fiction author, William Gibson: 'The future has already arrived. It's just not evenly distributed yet.' The successes and innovations have been relatively rare. IT and the Internet have provided stiff competition for the phone, the ledger, the library, and the filing cabinet, but the substantive work of lawyers has yet to be reconfigured.

In relation to research, Richard De Mulder considers the as yet unfulfilled promise of Jurimetrics:

Jurimetrics, the empirical study of the law, has never really come into existence. Although, given the way in which society has developed during the information age, it could have been expected that jurimetrics would become an important discipline, until now it has not conquered much ground in the universities or outside.

The articles in this issue trace many of the factors involved, including the underlying conservatism of the legal professions. However, for Leith, the critical factor in the failure of expert systems in law has been the failure of information scientists and lawyers to understand the nature and culture of law itself:

The primary reason why the expert systems project failed was that the ambitions were so difficult to achieve. What was being proposed was really the robotisation of lawyers - that their skills and knowledge could be easily formalised, and that as a process was at heart a quite simple operation - if you knew the rules, then you could give advice. ... (T)he expert knowledge which lawyers have is of a different sort to that which the expert systems designers were promoting as the knowledge base of their practice-oriented systems.

These four passages indicate the nature of the problem. And yet, while the problems are very significant, the histories presented in this volume also indicate that the following of proper principles and approaches can provide the pathways to success. This is the case with the history of legal information retrieval which has dramatically transformed the nature of legal publishing and the life of the law itself. Bing relates the way in which a pragmatic request by the Pennsylvania legislature led Professor Horty to invent an information retrieval system which has led to a worldwide flourishing of electronic legal information. Similarly Greenleaf explores the way in which a worldwide culture of free access to legal information has developed out of the careful coming together of pragmatic needs of practitioners, law academics and information professionals and the further generalisation of these modus operandi at a global level.

Galindo's study of the generalisation of legal informatics projects from the Aragon region of Spain to a global network indicates the significance of careful nurturing of both local and global communities.

Paliwala's account of the history of legal education also indicates the requisites for successful development and implementation of systems. The successful development of the CALI (Center for Computer Assisted Legal Instruction) project depended both on the early effort to establish a collaboration which was ultimately to envelope nearly all law schools and a tailoring of the courseware to the Langdellian Case Method culture of US law schools. In the UK these principles were similarly adapted to the different learning environment. The stimulating and ambitious challenge of clinical simulation systems such as Ardcalloch/SIMPLE is whether through careful attention to educational theory and practice, reflexive project developmental efficient administrative support of the UK Centre for Legal Education we may be able to achieve a revolution in learning.

3. Acknowledging the Pioneers

Legal informatics has a short history in spite of my own attempt in this volume to trace the history of informatics in legal education back to Confucius and Socrates! This has the advantage (or disadvantage for historians) that many of the original participants are alive and functioning today. It is an honour to be associated in this volume with some of these pioneers. Others are also given homage in this volume as actors in the development of the subject. My own interest in the subject commenced during undergraduate law studies in 1965 when I came across Hans Baade's edited volume Jurimetrics [3], and subsequently the Jurimetrics Journal. While the book was about the application of mathematical techniques to law, the authors appreciated that Jurimetrics could not flourish without the application of information technology. The authors represented there, including Baade, Glendon Schubert and Layman Allen were the true pioneers of the subject. [4] John Horty has a place in the Hall of Fame as the founder of commercial legal information retrieval systems [5], but the credit for transformation of these systems in the era of the World Wide Web and the foundation of free access legal information retrieval goes to Cornell's Legal Information Institute of which Tom Bruce has been the technological 'half'. [6] In legal education, the Minnesota-Harvard relationship between Russell Burris, Robert Keeton and Roger Park, later supplemented by Don Trautmann was the foundation upon which CALI was built, a foundation more recently reinforced by Ron Staudt and John Mayer. [7]

However, a few European pioneers also need to be mentioned here. In the United Kingdom, Colin Tapper is the doyen of legal informatics but also the founder of the study of information law. [8] When asked to organise the Queen's Belfast Law Faculty Computer Committee in 1968, he was the first person on my list and I went to consult him and Judith Reid at the London School of Economics. So did Jon Bing, and many years later Richard Susskind would do the same. On continental Europe, apart from my illustrious collaborators in this work, the general contribution of Peter Seipel as founder of the Swedish Law and Informatics Research Institute needs to be acknowledged. [9] In Italy Vittorio Novelli as the Director of the Centro Elettronico di Documentazione of the Corte de la Cassazione in Rome had a key role not only in developing the Italgiure information retrieval system but also in bringing together the community of scholars, judges, lawyers and information professionals involved in legal informatics at conferences in Rome. [10] In Germany, Maxmilian Herberger was the founder of the Justis information retrieval system but has also played a major role in developing a wide range of legal informatics including legal education. [11] In France, Danièle Bourcier has promoted legal informatics as Director of Research at the Centre d'Études et de Recherches de Science Administrative ( CERSA-CNRS, Paris). [12]

If this list has a North Atlantic feel to it, this is because information technology development was led by North Americans to which Europeans and some antipodeans also made important contributions. It is likely that the history of legal informatics in the 21^st Century will have a much more global feel.

4. A History of Institutions

The pioneers were all sustained by an excitement about the message of the new medium. However, as we have indicated, they combined an intellectual sense of inquiry with pragmatic purpose. There were of course many individualists among them, Colin Tapper being one of the foremost. However, most operated in environments made up of conservative lawyers and academics, who were not strongly enamoured of legal informatics. In the circumstances, a sustaining force was provided by the ability to collaborate and to organise.

We have already noted that the success of CALI was achieved by the four collaborators being able to convince the whole US academic community that it was worth investing in an eLearning organisation which would enable pooling of lessons to the advantage of both creators and users. We in the United Kingdom learnt from this and formed the British and Irish Legal Education Association in 1985 in order to promote collaboration in all aspects of legal informatics and information law. [13] Nearly all law schools joined BILETA, which supported the formation of the national Law Technology Centre (LTC). [14] This spawned the Law Courseware Consortium which developed the Iolis Courseware and the Electronic Law Journals project which developed a number of eJournals including the Journal of Information Law and Technology (JILT). [15] The LTC subsequently became incorporated in the UK Centre for Legal Education. [16] There are of course a number of collaborative endeavours in legal informatics, but I use a few examples only to illustrate the differences, which are between active collaborations which involve an executive capacity to implement projects on a collaborative basis and academic collaborations which focus mainly on organisation of conferences.

The main responsibility for promoting Legal Informatics within the professions has been shouldered by national professional organisations. In the United Kingdom, for example, the Society for Computers and Law has played a prominent role in sustaining the enthusiasts and a wider outreach through information, education and lobbying. If information technology has not taken hold, as Susskind suggests in this volume, then it may be because the Society is better at working with the enthusiasts than with the ordinary lawyer.

Similarly, in the AI community, there have been two prominent organisations since the 1980s. The International Conference on Legal Knowledge and Information Systems (JURIX - http://www.frg.eur.nl/jurix2009) based in the Netherlands and the International Association for Artificial Intelligence and Law (IAAIL http://www.iaail.org). [17] They are traditional scientific conferences whose main activity is conference organisation and publication of journals.

On the other hand, a different culture has prevailed with two organisations which have each been successful in different ways. The Legal Framework for Information Society (LEFIS) organisation has brought together over 90 law schools throughout Europe with growing worldwide links as well as links with legal practitioners and IT professionals. For many years, LEFIS had the advantage of being an EU Erasmus funded network. The creative energy of LEFIS has been not only to organise conferences and workshops and publish a series of volumes (including this one) on key subjects, but also to promote a wide range of collaborative projects. [18]

In the area of legal information, two collaborations need to be mentioned. These fit within the Web 2.0 new collaborative economic model rationalised by Benkler. [19] The first is the Creative Commons project which is making great strides in overcoming the constraints of copyright by providing platforms for material placed on the Internet under creative commons licenses. [20] The other, and for lawyers more significant, collaborative model is located in Legal Information Institutes (LII) for which WorldLII constitutes an umbrella organisation. [21] As Greenleaf and Bing indicate in this volume, the LII movement has been the basis for a major worldwide transformation in access to justice for lawyers as well as for the general public.

5. Futures of Legal Informatics?

Susskind in this volume suggests that the very future of law and lawyers is at stake and that avoiding legal informatics is akin to burying our heads in the sand. At the same time, as Leith indicates (and Susskind would acknowledge) there are many pitfalls in developing legal applications on the basis of simplistic theories about the nature of law. The arenas where legal informatics has been successful have been ones in which information technology has already transformed practice in society generally - effectively through standard business type practices and information retrieval and management. The arenas where success have been lacking has been those involving transformation of the substantive culture of legal work including legal education. If legal informatics is to have a bright substantive future then a number of issues need to be addressed.

There is need for a better understanding of the nature of law and legal culture and its relationship with the culture of information society. Unfortunately, lawyers, information scientists and information professionals who work in legal informatics have tended to take traditionalist legal perspectives for granted. [22] In particular, it is important that funding for projects is based as much on the socio-legal context as on the information technology context.

Secondly, however problematic the early history of legal informatics projects may have been, the focus of legal educators and professionals has moved away from legal informatics. Lawyers who are interested in information technology gravitate towards information law rather than information applications to law. Legal education exacerbates this. In the United Kingdom, for example, there is a dearth of undergraduate or postgraduate courses which involve the study of legal informatics. The ending of the LLM programme in Belfast exemplifies the decline of interest. The relative absence of informatized lawyers means that projects in legal informatics will either fail to take off or continue to fail either through too great a dominance of the information professionals or through a failure of communication between lawyers and professionals.

Yet, there is sufficient evidence of successful projects to indicate that it is possible to achieve change. This volume suggests that successful projects depend on two factors. The first is the need to appreciate the power of collaboration. This is especially important in Web 2.0 culture, which has shown the enormous benefits of social networks. The second is the significance of values in culture change. Any changes in law, legal systems and processes have to be based on the appreciation of values of legality, rule of law and justice which have been won as part of historic struggles. This is different from vested interests which most lawyers try to protect from any change. There are similar values involved in legal education. The maintenance of these values requires not so much an avoidance of change but an understanding of deep structures embedded in legal culture.