Technology Forum Meeting - Transcript of Discussions - Page 5  <<   >>

MR. SIENKO: I'm going to introduce Professor Peter Martin. Professor Martin is former dean of the Law School here at Cornell. He and Tom Bruce are the pioneer co-founders of the Legal Information Institute, which is famous worldwide as a repository of primary source legal documents based upon public domain. They have developed a series of technological tools that allows them to use public information and add their editorial content to it. I think Professor Martin will tell you more about that.

He and Legal Information Institute, in particular Patrice and Tom Bruce, have been a enormous content resources for us at the bar association and the materials that we produce over the years. Their New York law bulletin and their United States Supreme Court LIIBULLETIN of Supreme Court decisions are just wondrous works to behold, as they take them out of the air and convert them same day and annotate and send them to us. And others are able to re-distribute them for themselves. They are so famous they actually have clones in Australia, New Zealand, and South Africa.

Professor Martin needs the time more than I do, so Professor Peter Martin.

(Applause.)

PROF. MARTIN: Well, I am so pleased to be part of this exciting day. I still have Steve's strong questions ringing in my ears and the urgency with which he challenged this group to come up with bullet points by the end of the day. I'm asking myself, given the array of experiences and talents in this room, how can I help? And maybe the answer is to sit down, get out of the way. But I think I'm being held to a schedule. So I will try to do what I can to facilitate, to create some framework, as a perspective for this project in a short span of time before lunch.

I'm going to draw upon three different sources. I'm going to start by drawing upon the perspective that I have as an affectionate outsider. You are all in the practice of law, while I have for years been teaching law. I've been an educator. I've been training lawyers, which means to say I have a strong affinity -- a strong identification with the work that you do, but that means I have also got just a bit of distance on it. That may help me get some notion of the context in which these questions are arising. And I'm going to pull not only on my own experience and learning but also on what I have learned from colleagues who studied the legal profession and study it over time.

Some of these are folks that I've had the good fortune to work with over the last year and a half on an American Bar Association committee that is charged with looking at where the profession and legal education are headed. They have been charged with thinking out of the box about the futures that we respectively confront. So I'll be pulling on some of the work of that committee.

The other segment of the strands that I want to pull and weave together, as I work with you today, is the experience represented by the Legal Information Institute's partnership with the New York State Bar Association. This includes some of the folks in this room.

And last I want to pull in a distinct perspective that I have arising out of the work I've been doing in social security law over a long period of time, a field which first brought me into digital law. It was a project in the field of social security law that first had me fantasizing in electronic treatise -- a full treatise and professional database to go along with it that morphed into the Legal Information Institute. And what I was hoping to see in the social security field of law is something I hope to draw upon. So digital technology, competition, service commodities, and networked communities is the umbrella I have spread over these remarks.

PROF. MARTIN: In a way -- and I don't want to dwell on this -- this room that we're sitting in is a metaphor for the problem or the challenge we confront. This room is 70 years old. It's ruggedly built. It was built with very definite uses in mind. It's a room that links to an even longer history. The figure staring at me from the back of the room is the Lord High Chancellor of the U.K., 1707.

As I've already remarked, this room as it was first conceived was a room to provide respite for those few women who were students at the Cornell Law School. It was the women's lounge. Then there was a men's lounge, much larger and less attractive, a less attractive place. And this room has changed with the times and the change wasn't always easy. The change involved some funny word play for a while. The men's lounge was the M-E-N-Z lounge. And I would draw your attention to a few things. First of all, technology is here, but it's not a comfortable fit. This room isn't networked. The wireless has a little trouble getting in here because of the ruggedness of the construction of Myron Taylor Hall. Note that we have a cart here that has holds a TV and overhead projector, and we can roll a blackboard in and out.

Then we've got the books sitting in sort of a disgraced pile over here, and that sort of clumsy accommodation of change is where I think most of our institutions find themselves right now. We've made changes in our lifetimes that have been dramatic, but it's still within an envelope of old architecture.

Even as I'm with you in this room, I am teaching a course this term, a term that has 75 students scattered across the United States from Alaska to Florida, from North Carolina to California. And I will never be sitting down with them in the same place at the same time. This is a course in social security law that I am teaching by the Internet. And the puzzle that the Cornell Law
School has and the challenge it has is how do you move into that kind of unencumbered future when you are encumbered by old architecture. That's the large space in which I see today's exploration taking place.

Digital technology for your profession and my closely related one opens up new opportunities of many, many kinds. I mean both of our activities, the teaching of law and its practice have information and have communication at their core. And the technology that we now see all around us is truly transforming, how information is stored and retrieved and manipulated and how people communicate with one another.

These are technologies that have the capacity to penetrate old boundaries. They can leap out at Myron Taylor Hall and enable an educational process that involves students that are everywhere and don't at any one point in the day sit down and work together but instead work synchronously.

It's technology that makes it easier and easier to unbundle things that we see as being sort of tightly packed and rather hard to separate. We think of professional services in this light, and it is technology that invites us -- challenges us -- to find ways to separate out those things that do not involve repetitive re-invention of the wheel, but allows one person to build on work that others have done. And the thing that we need to do is to manage to free ourselves from the constraints of old architecture because resisting change is just not an option.

Now, here is the world in which I work. As I think about what digital technology allows in law teaching, it seems to me that it's quite possible for a law school like this one to imagine that lawyers and judges and academics anywhere in the world are involved in the project of teaching our students. We can have a curriculum that doesn't involve marching students for 50-minute sessions into classroom, followed by 50-minute sessions in another classroom. We can provide greater access represented by teaching courses that students are taking anywhere in the United States that are being offered by faculty people here. We can generally share students and courses. We can distribute the scholarly research done by faculty in new ways that don't involve bundling into things called law journals and pushing and shipping them out to the shelves of libraries, and we can reach new audiences.

Possibilities in your profession strike me as perhaps even more revolutionary. But change is a threatening thing, and it's particularly threatening when it involves materials over which there has previously been monopoly. Lawyers and law teachers have in the past seen important self-definition come out of their ownership of or their unique relationship to certain information. As Ethan Katsh in 1995 remarked, "Professional authority tends to decline when informational distances are smaller. The status and authority of law and lawyers are related simply not to what they do but how they know and how to distinguish the information they possess. So let the information that is lawyer information become more generally accessible and there is inescapable erosion of the status and authority of lawyers."

Put in somewhat more provocative terms, we have a recognition that those who have created a business or profession out of an information monopoly or locational advantage may see business disappear because this is technology that ruthlessly attacks those kinds of monopoly positions.

The most frightening prospect for those in legal education in the United States is the law school name Concord. Do you know it? Any of you know? It has no campus. It, with which some would breathe a sigh of relief, is not accredited by the American Bar Association. It's tuition for a JD degree is just a shade above 20,000. Students can take the program part-time. It's a part-time program. And they need not commute. They can do it where they live or work. All right? So an enterprise depends on particular information assets like the library here and a particular gathering together of teachers and students, and the costs associated with all of that may find it seriously threatened by an enterprise, which says you don't have to come to us. We're a legal education that's online. And I would invite you to sort of think of the analogies in the field of law practice.

If you look at most industries today, there is a class of jobs that are "human modems." You know, you call up your bank and ask, "What's my account balance?" The person on the phone looks at a screen and tells you. Most lawyers and people you think are highly professional tend to have a routine component of their job that a computer could do better.

- Shikhar Ghosh, Cofounder and Chairman of Open Market, Inc., Feb. 1999

One last sort of slice into this fundamental point, Mr. Ghosh suggests there are kinds of jobs -- and he refers to lawyers as being one of that type -- jobs which constitute human modems. This is the human acting simply as an information transfer mechanism -- you know, the client calling the lawyer to have the lawyer tell the client the law. And insofar as law becomes a look-up, publicly accessible resource, the monopoly that is represented by being a human modem goes away. All right. And so if this is the challenge out there in the world, how do we, as organizations, whether we are law firms, law schools, or bar associations, respond?

The organizations that will truly excel in the future will be the organizations that discover how to tap people's commitment and capacity to learn at all levels in an organization.

- Peter M. Senge, The Fifth Discipline (1990)

The organizations that will truly excel in the future will be organizations that discover how to tap people's commitment and capacity to learn at all levels in an organization. And I'm going to add a little bit to Peter Senge's recipe and say to draw upon the knowledge throughout the organization -- to draw upon the knowledge of the organization and adapt and change.

I think candor forces me to say law schools, organizations, or enterprises I know best don't quite meet the test of being learning organizations. They're incredibly hierarchical. They're incredibly attached to past ways of doing business. Despite all the collegiality that one hears about, there are still real barriers to communication, particularly communication about change.

Our institutions, I think, by design, are slow to act, and law firms, law schools, and bar associations are not well suited in these terms to be launching venturesome new initiatives. They find it hard, and since they find it hard, the present situation is a frightening one. Somehow law schools, bar associations, and law firms have to find a way to acquire the capacity for strategic planning, for adaptive programming, and for gathering the knowledge that's within the organization. They need to build systems that allow not only adaptation in one quantum shift, but also continuing adaptation and change. The actual culture and status arrangements of all faculties -- and I'm suggesting law firms and bar associations -- make that difficult.

I love the Encyclopedia Britannica. It was an altar in my house when I was a child, and we created a similar altar when we had young children, children in high school. So it was a personal tragedy when the Britannica was utterly blind-sided by all that was happening digitally and was blown away. I mean, the brand name still exists. There is Britannica.com, but that's about all that was salvaged, plus some of the content of the books. It tried to just hold onto its prestige, the quality of its content, and it was blown away by a far less comprehensive, far less sophisticated encyclopedia that Microsoft renamed Encarta, and bundled with its package of software for folks. They were then truly blown away by the Internet, which gave every household with a decent search engine access to far more, far deeper information than Britannica ever could assemble with their editorial process.

During the same period of time this was happening to the Britannica, similar forces of change confronted the legal information industry, and while it still survives, it survives in a very different form than it entered the last decade. We've got consolidation and merger. We've got organizations that are no longer based in the United States, but part of transnational conglomerates that are involved in the commercial distribution -- or I would say re-distribution of legal information.

It strikes me law practice and legal education are positioned at an earlier point on a similar curve to that road traveled by law publishing in the United States. For some time to come, we'll be wheeling computers into old spaces. We'll be excited about what I'll call just transition phenomena like a law professor having web pages to accompany the material in a course for students. But the pace of change is still slow in the organizations I know -- certainly in this one. And most of the controversy is about bringing new technology into old spaces rather than redesigning, redesigning institutions given the new possibilities. Now, there's one thing, and I'll refer to it only to dismiss it, and that is reinforce the boundaries around our respective professions with regulation. That we fend off -- we professionally -- fend off the threat of unauthorized practice of law through enforcement.

[T]he "practice of law" ... include[s] the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.

- Texas Government Code 81.101