and the Technologies of Communication
of Chicago Press
texts are ubiquitous in our legal system. Lawyers and judges
such texts just about every day, and when they aren't drafting
they are often struggling to interpret and apply them. Law is
one of the most literate of all professions. Legal texts are also
important to the rest of society. Documents like statutes,
opinions, deeds, wills, and contracts literally govern much
the nature of such texts is undergoing tremendous
Many of these changes result from developments in the
of storing and communicating information. For thousands
years, the primary technology for storing and communicating
information has been writing. During the past millennium
two, writing has generally consisted of using ink to place
on paper or parchment. The process could be done by hand
by a mechanical device like a printing press.
many people do most of their writing by typing on a computer
The texts that they produce may reside only on
hard disk or other electronic storage medium. What appears on
screen is not really letters of the alphabet but rather tiny dots,
pixels, which create the impression of writing but which can
represent images. Not only are legal texts stored on computers,
the Internet has made it increasingly possible to communicate those
law is such a textual enterprise, one would expect that the
of storing and communicating legal texts would have been
topic of much discussion by the profession. Lawyers do indeed concern
with these issues, but they almost always do so within the
of a specific area of the law, such as requirements that contracts
wills be in writing. Surprisingly, even legal academics have paid
attention on a more general level to the nature of legal texts,
literary conventions that produced them, and the technologies used
store and disseminate them. This book aims to start remedying that
the past few decades, scholars of literature, psychology, education,
anthropology, linguistics, and related fields have begun to investigate
evolution of writing and its impact on our culture and its institutions.
Olson has suggested that the development of alphabetic
systems gave Western civilization many of its defining features.
to an influential article by Jack Goody and Ian Watt, writing
it possible to begin distinguishing myth from history.
accidental that major steps in the development of what we now call
followed the introduction of major changes in the channels of
in Babylonia (writing), in Ancient Greece (the alphabet),
in Western Europe (printing).
scholars suggest that the development of writing, especially the
based alphabet that arose in ancient Greece, has not merely
our civilization and culture in dramatic ways, but has fundamentally
how people think. According to Eric Havelock, Greek
changed not only the means of communication, but also the shape
the Greek consciousness. In a similar vein, Walter Ong argued that the
of literacy fostered abstract thinking, categorization, and
no one doubts that the rise of literacy has had a profound
on human civilization, the extent of its impact is controversial.
more so is the issue of whether and how literacy influences cognition.
no one doubts that a literate society is quite
one that is purely oral. The debate is not about whether
an impact on our civilization, but rather about how
spread of literacy is also held to have had important ramifications
our legal systems. Goody has posited that writing effectively
from law. And the
ability of the population to read and
is claimed to have promoted important political and legal institutions,
of the central aims of this book is to investigate these issues as
relate to the law. What impact does the adoption of writing have on
law? What is the role of writing in our legal system today? What is the
of legal texts? And how are written wills, contracts, or statutes
those that are retained solely in the minds and memories of
subject to them?
Technologies of Writing
closely related issue is the technologies of communication. Despite the
effect that developing literacy had on ancient civilizations, the
of writing changed very little over the ensuing millennia. Essentially,
involved an individual placing meaning-bearing marks of some
on a medium (parchment, paper, stone, wax, etc.) that was capable of
those marks. We still do this today when we write with pencil
in the fifteenth century did the next major revolution in communication
occur. Before this time, scribes had to laboriously write
copy texts one at a time. As a result, written materials were expensive
scarce. The invention of the printing press made relatively cheap and
copies of a text widely accessible. Like writing, printing has been
with monumental societal movements, such the Renaissance,
and the scientific revolution.
we will see, the printing press also had implications for several areas
the law. It now became possible to create and distribute very large
of copies of important legal documents, especially statutes and
opinions. For example, when the English parliament first started
enact statutes, lawyers and judges would have been unlikely to rely very
on the exact words of the law. At best, they would have had a
of an original document contained in a government archive.
once they had a printed copy that was certified to be an exact
the text that Parliament had debated and adopted, the words in
text began to assume much greater significance.
there are other major developments in the technologies
communication, such as radio, telephones, and television, that have had
huge impact on our lives and culture. Yet they have had little influence
the law. True, it is almost impossible these days to imagine the
law without telephones. And television depicts one trial after the
real and fictional. Still, the nature of the law and our legal system
to the daily practice of the profession) have scarcely been affected
is it that the development of writing and printing have had much
influence on the law than have radio, telephones, and television?
of them are important technologies of communication. The difference,
believe, is that law has traditionally been a predominantly textual
telephones, and television transmit sound and images. Law,
the other hand, relies very heavily on the written word.
recently, the technology of writing and the nature of the texts
it produces are undergoing epochal changes caused by the development
computers, mass storage devices, and the Internet. Now that cases
statutes are easily and cheaply accessed online, the shelves of books
traditionally line the walls of law firms have largely disappeared or
decoration. Lawyers are increasingly filing documents such as motions
briefs electronically, rather than sending a courier to court with a
of papers. Almost all legal research is conducted via computers and
Internet. Electronic contracting has become routine.
scholars take the view that computers and the Internet will have
great an impact on our civilization as the development of writing and
did. Jeff Gomez, in a printed book bearing the title Print
out that reading on a computer screen is a vastly different enterprise
reading out of a book: What's going to be transformed [is] the
to read a passage from practically any book that exists, at any time
want to, as well as the ability to click on hyperlinks, experience
add notes and share passages with others. All this will add up
a paradigm shift not seen in hundreds of years.
more sanguine view is taken by Nicolas Carr, who has written extensively
technology. He recently published an article with the title
Google Making Us Stupid?
point is that people read
than they used to, or read differently. Carr quotes people who were
voracious readers but who have stopped buying books altogether, or
claim to have lost the ability to read a longish article on the web
in print. A survey
published by the National Endowment for the
in 2004 found a dramatic decline in the percentage of the population
reads literature (defined as novels, short stories, plays, and
research from University College London, sponsored in part
the British Library,13 reports that
people seeking digital information on
Internet do not usually read the content of websites from start to
they engage in a type of skimming activity: they view just one
two pages from an academic site and then "bounce" out, perhaps never
return. The figures are instructive: around 60 per cent of e-journal
no more than three pages and a majority (up to 65 per cent) never
to the authors, people searching for information
not engage in reading in the traditional sense; rather, they are
titles, abstracts, and content pages looking for quick wins.
who cites this study, concludes that Internet users today not only
differently, but they also think differently.16 These
claims, of course,
those made regarding the impact of writing, and like those claims
should be taken with a grain of salt.
there can be no doubt that many aspects of our lives and
are being radically transformed by modern technologies of communication.
is true also of the legal world.
scholar who predicts that computers and the Internet will result in
in legal culture is Ethan Katsh. He observes that, as opposed
conventional writing or printing (that is, traditional text), electronic
distribute information much more broadly and quickly, that users
differently with it, that images become relatively more prominent,
that information can be organized more flexibly. Electronic
less stable, less fixed, and less tangible than writing and printing.
boundaries between different types of media (such as text, graphics,
sound) are beginning to blur.19 Katsh
predicts that these developments
have significant consequences for the system of precedent and how
research and access the law.
process is well underway. The best example is contracts, which today
routinely transacted online, sometimes without a scrap of paper
exchanged or printed. In a similar vein, lawyers are more likely to
a case or statute online these days than in a book.
while the media are changing, writing and text remain tremendously
to the law. A will or testament still invariably consists of ink
paper, without multimedia content or other modern embellishments.
remain almost entirely written text, even though they are widely
by electronic means and could easily include sound, pictures,
video. Likewise, judicial opinions remain mostly text, although they
graphics (usually in an appendix) and in one instance
a reference to a video available on the court's website.
prove the rule, however.
experience suggests that it is easy to overstate the potential impact
new technologies on the law. In 1992, two legal scholars, Ronald Collins
David Skover, published an article entitled Paratext in the Stanford
suggested that, although our legal consciousness is
by print, nontextual forms of storing and transmitting information,
they call paratexts, will ultimately challenge the dominant
of traditional text and writing in the legal system. Collins and Skover
that paratexts, which can include any form of electronic communication,
come to supplement and eventually replace written evidence
documentation. The official record of trials, as well as wills and
will become paratext. This will rapidly change the Gutenberg
of the printed word.
and Skover were mainly concerned with audio and video recording,
they were writing before computers were common in courtrooms
law offices. It is true that some courts have replaced the stenographer
mechanical audio or video recording machines. Yet, for
most part, a videotaped record must be transcribed into written text
be printed on paper for purposes of appeal.23 Moreover,
video has not
written text in most other areas of law. Video can be a useful
tool, but when the law requires wills and contracts to be in
paratext has so far not proven to be an acceptable alternative.
should also be cautious in drawing causal connections between
changes and our culture in general or our legal system in
as Richard Ross has emphasized. The effect of social, economic,
political factors should not be ignored. The
invention of alphabetic
in ancient Greece did not cause the rise of democracy in Athens,
it may have enabled or promoted its development. Nor can we
with complete confidence the changes that modern technology
however, the trend is clear. The traditional supremacy of written
in the sense of ink on paper, is being challenged. Whether it will
entirely supplanted is open to serious doubt, but it will almost
demoted (or enriched) by modern technology.
aim of this book is therefore to assess the impact that changes
the technologies of communication have had or may in the future have
the law. It goes without saying that the daily practice of lawyers is
affected by computers and the Internet. In addition, the nature
the law and of legal transactions is also changing. Just as a written
different from an oral decree, a statute printed on paper and bound
a book is not the same as a statute that is typed into a computer and
on the Internet.
Conventions of Literacy
set the stage, we will begin in chapter 2 by examining the phenomenon
writing more closely, concentrating on how it differs from speech.
many respects, writing is nothing more than a means of representing
in a more enduring form. Yet this simple observation has tremendous
For example, the relative permanence of written language
it possible for a text to be transmitted over great distances
long stretches of time. Writing may not be essential to governing a
state or empire, but it certainly facilitates the process.
as societies become more literate, a strong belief tends to
that it is good for laws, as well as for many private legal
be reduced to written text. When that happens, there is a tendency for
text of those writings to become increasingly authoritative, a process
which I refer as textualization.
speaking, the earliest legal texts were almost always records
spoken transactions. As such, they functioned merely as evidence of an
oral event. Over time, however, the written text often became
not just as evidence of a legal event, but as constituting the event
The text was no longer just a record of the law. Rather, it had become
law. Statutes therefore had become textualized.
professionals textualize a contract or statute not just by writing
the essence of what they agreed to or decided. They carefully choose
edit the exact words that will function as a definitive statement of the
of the will, contract, or statute. The essential transaction is no
act of reaching agreement or making a decision; it is the text that
authors created. It is therefore not surprising that those who need to
a contract or statute (often judges) tend to take the words in
text very seriously.
is just one of the literary practices of the legal profession.
course, most of the textual conventions of lawyers and judges (such as
relating to spelling) are the same as those in other realms of human
Yet some of the law's distinctive literary practices, in particular
are unknown to the lay public. These conventions have the
to create problems for those who engage in a legal transaction
are not familiar with the literary practices that govern the drafting
of the resulting text.
explored in general the nature of writing and the textual practices
the law, we will be in a better position to examine and understand
categories of legal texts. Although we will spend a fair amount of
discussing the evolutionary development of wills, contracts, statutes,
judicial opinions, our concern is not in the first instance with what
hundreds of years ago. The history is often interesting for its
sake, but the reason for exploring it here is primarily to illuminate
current situation. Thus, by comparing oral lawmaking in medieval
with the highly literate process that is used today, we can better
the nature of modern statutory texts.
or wills were typically declared orally in the presence of witnesses in
Anglo-Saxon England. After literate clerics came to England
members of religious orders would
sometimes write down
terms of a will. Such documents were merely evidentiary, and for a
time they were not considered very good evidence when compared
the memories of the witnesses who were present.
the society became more literate, however, writing gained greater
so that the written will came to be viewed as the best evidence of
happened. Eventually, the concept of a will (a word that originally
a mental state) became coextensive with the document that bore
title. More recently, the text of a will has come to be regarded as the
and only expression of the testator's intentions. Wills have, in other
become highly textualized.
literary conventions of will making have often created difficulties
the testators on whose behalf the will is deemed to speak. For
that a testator makes informal changes to a will after it
executed, such as crossing out one amount of money and substituting
larger amount. Such changes are usually invalid and in some
have the perverse effect of invalidating the gift entirely, even if
testator meant to increase it. Also surprising to most people is that in
American states a will that is handwritten and signed by the testator
more likely to be carried out than one that is typed, signed by the
legal system needs to become more aware of ordinary conventions
beliefs relating to texts, especially when they conflict with legal
regarding writing. These problems are likely to become even
as people begin to type and store their testamentary desires on
the law of wills does not currently recognize as being writings
which are therefore invalid).
are interesting from our perspective because they can still be
oral, as in early England, or they can be made orally with a written
as evidence, or they can fully textualized. This is reflected
the fact that the word contract is
ambiguous: it can refer either to an
(which is a mental state) or to the document containing the
writing and textualization are mandatory in wills law, parties
a contract can generally choose whether or not to textualize their
customary way of textualizing a contract is to add what is called
integration or merger clause, which usually says something to the effect
this writing is the final agreement between the parties and that
supersedes any prior oral or written terms. From a legal point of view,
agreement is no longer something contained in the parties' minds;
consists of the text that they have created.
the positive side, textualization adds a great deal of certainty to
Yet it can, once again, become problematic when
consumers are involved. Most people are not familiar with the
conventions associated with merger or integration clauses, which
bind them to the text of an agreement that is at variance with what
have been said or negotiated. And the clauses are often buried in small
or lurk behind an easily overlooked link on a web page.
rapidly evolving communication technology has dramatically
the nature of the contractual text. Unlike wills law,
continues to demand writing on paper and very strict execution
(typically, a signature by the testator in the presence of two
it has become extremely easy to enter into a contract on the
The very loose requirements of electronic contract formation
illustrated by one-click shopping) promote quick and easy commercial
a boon for both businesses and consumers. Yet modern
are often imposed with so little formality (by merely opening
box of software, for instance, or by clicking on a link of a website)
may find themselves unwittingly bound by a text that contains
one-sided terms, often reinforced by an integration clause whose effect
do not understand. Whereas the textual practices of wills law are
too strict, those relating to contracts may be too lax.
will next discuss statutes. The earliest laws written in English were
Anglo-Saxon codes. These codes were almost entirely evidentiary
descriptive of current customs. But in the twelfth and thirteenth
efforts at lawmaking become evident. These early statutes
written down by a clerk after a legislative proposal had been adopted. They
were generally quite loosely interpreted by judges, who might not
have had a copy of the statute in their possession. It's hard to be a
if you don't have a text!
a formalized procedure for enacting statutes developed,
Parliament, with royal assent, enacted written proposals into law.
words of a statute were no longer merely evidence of what Parliament
the king decided; rather, those words came to be viewed as constituting
statute. In other words, statutes had become highly textualized.
in consequence began to pay more attention to the text.
was the next major development. Early printed versions of
were not always reliable. But by the eighteenth century, accurate
copies that contained the exact words that Parliament had enacted
widely available. Courts began to scrutinize the text of statutes
more closely. Although the practice has been moderated recently, a
literal method of interpreting statutes is still common in England.
the United States, legislatures also routinely enact written text, and
copies of legislation have been widely accessible since the founding
the republic. Nonetheless, American courts have never adopted as
an approach as those in England. This difference illustrates that
textualization may enable a more literal style of interpretation, it
not require it or inexorably lead to it. Yet once the elements are in
the attractions of a textual mode of interpretation are strong, as the
rise of textualism in the United States has illustrated.
will almost certainly remain written text for the foreseeable future.
dissemination in an electronic format makes it possible to add
content and to change them almost instantaneously when the
arises. But do we really want to be ruled by a paperless statutory re-
that is maintained on a legislative website subject to continual
may be hopelessly old-fashioned, but I greatly prefer to be governed
statutes that cannot be frequently changed in the way that an Internet
updates stock prices and its weather report.
other major source of law in a common law system consists of judicial
(usually called judgments in
Britain). In contrast to statutes,
have long been regarded as quintessentially lex
English lawyers and judges traditionally considered the common
as revealed in their judgments, to be lex non
lawyers were aware, of course, that many judgments were written
and published in books of reports. But the writing was done by reporters
in the courtroom, not by the judges themselves. The reports
summaries of what the lawyers and judges said in court, followed
a brief description of the result. There were sometimes multiple and
different reports of a single case, and some of them were not
recently, the reports of cases in England have become quite reliable. Nonetheless,
English judgments have resisted the textualization that is so
in other areas of the law. Consequently, the law that is contained in
judgments remains surprisingly oral in style. The main reason is that
judicial opinions were traditionally delivered by word of mouth,
they often still are today. Judges pronouncing an oral (extempore)
their words carefully, but because of the limitations of the
they simply cannot plan and fine-tune the wording of their decisions
the extent that a writer can.
goes without saying that English lawyers pay close attention to what
say in their judgments, but they do not dissect the language in the
that they would analyze the text of a statute. They are concerned with
the gist or essence of the judge's words, especially in how it
the reasoning that the judge used to determine the outcome. For
and similar reasons, it is fair to say that the common law of England,
in particular the notion of precedent, is relatively more conceptual
less textual than its American counterpart.
orality and conceptual nature of English common law adjudication
largely disappeared in the United States. Early in the history of the
most jurisdictions began requiring appellate judges to issue opinions
writing. Courts also adopted the practice of having one judge draft
opinion that spoke, in a single voice, for the majority. Accurate copies
the texts of opinions, precisely as written by the judge, became widely
would go too far to say that American courts have fully textualized
opinions, making them similar to statutes. Yet they have clearly
a path in that direction. The advantages of clear text in certain
of cases suggests that it may sometimes be worth proceeding. At the
time, there are some very real benefits to traditional common law
which allows the law to evolve more naturally in the light of
circumstances. Before heading further down the path of textualizing
common law, judges should sit back and contemplate the nature
the texts that they are creating, as well as the textual mode of
they are encouraging.
however, the future of the legal text is not entirely within
control. In particular, online databases have started to include more
more judicial opinions, including many that in the past would not
been published and would therefore be relegated to obscurity. This
has resulted in a massive increase in the case law that is available
lawyers. The only effective way to search through these databases is by
of an electronic search engine. Unlike a human being with legal
who can peruse a judicial opinion for concepts or principles, current
engines can only locate strings of text. As a consequence, the
of judicial opinions has the potential to make the common law
textual and, concomitantly, less conceptual. It may lose the flexibility
once had to be interpreted and reinterpreted to fit new and unforeseen
the Mesopotamian scribes who first began to write contracts, wills,
statutes on clay tablets, we cannot fully foresee the impacts of our
What we do know, however, is that it matters whether
make law by oral decree, by chiseling edicts into stone, by enacting
that is spread far and wide on parchment or printed copies, or by
on a computer keyboard and posting the result on a website.