Technological Conservatism: How Information Technology Prevents the Law from Changing*

Article excerpt

I. Introduction

In recent decades much attention has been given to the great changes that information technology (IT) has brought, and will bring, to the legal profession.1 To be sure, the hegemony of computers, the internet, and accompanying electronic tools have changed, and will continue to change, the practice of law. Changes in IT will change the law itself. Commentators, in their efforts to explain and understand the changes that new information technology is bringing to the modern world, and to the legal profession in particular, have largely assumed that information technology is a radical and progressive force. Current literature on the relationship between law and technology is pervaded by the assumption that new technology equals radical change and instability in both the law and the legal profession.2 Commentators have referred to the influence of technology on the law as "radical,"3 "antagonistic,"4 and "transforming."5 Further, the assumption that IT invariably brings ferment has been supported with history.6 In their efforts to explain and understand the way changes in IT will impact the law, commentators have looked to the invention of the printing press, arguing that the "print revolution" demonstrates how information technology will similarly induce radical change.7

This Note suggests a different analysis of the impact of IT-a different way of examining the effects of information technology on the law and the legal profession. It argues that information technology can act as a profoundly and ironically conservative force.8 This dynamic, which I call "technological conservatism," is simple: technology, although allowing and even demanding great change, also promotes the preservation of, access to, and ultimately reliance on, the past.9 Throughout history, information technology has magnified and enshrined the conservative aspects of the law and its practice: precedent, legal jargon, custom, and tradition.

Part II of this Note presents the basic historical model necessary to an understanding of technological conservatism. In doing so it presents some background in order to provide the reader with a sense of where this Note fits within the body of commentary addressing the impact of IT upon the law and the legal profession.

Part III examines the advent of print, arguing that the technological advances of printing, while surely changing the law, also had a profoundly conservative effect. Conservative devices such as precedent, case reporters, formbooks, legal dictionaries, and written pleadings came into being and owed their existence to the new information technology of that day. This Part demonstrates how the print revolution preserved the past, thereby introducing a large degree of stability to the law and the legal profession.

In Part IV, this Note considers the significance of technological conservatism today. Three general conservative effects evident in the history of printing and the law are also apparent in the new information technology: the ability of IT to facilitate preservation of, greater access to, and reproduction of, the past.

Part V concludes with a more specific examination of the conservative impact of IT on legal argument and legal language. These two areas demonstrate how IT is tying the legal profession and the law ever more tightly to the past.

II. The Historiographic Model

Implicit in the thesis of this Note is the assertion that the introduction of new technology has a causal impact on society-that information technology brings a certain psychological and practical orientation to the world.10 This basic historiographic model, which involves the study of how changes in information technology impact human institutions, is not a novel one. Its origin is widely associated with the late Professor Marshall McLuhan.11 McLuhan maintained that most historical phenomena are a product of the various forms of communication, such as print, radio, television, and film. …