United Kingdom Journals

Richard Susskind, The Future of Law: Facing the Challenges of Information Technology, Oxford University Press 1996 309 pp, ISBN 0 19 826007 5, Hb £19.95.

Reviewed by Andrew Charlesworth

Senior Lecturer in IT Law
Director, Information Law and Technology Unit
University of Hull Law School

<A. J. Charlesworth@law.hull.ac.uk>

Copyright © 1997 Andrew Charlesworth.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Contents

Introduction
No Future for Jurisprudence or Sociology of Law?
The Role of Lawyers: Information Engineers or Microserfs ?
Conclusion

Bibliography

Introduction

Playing the futurology game can be financially rewarding experience for authors able to create plausible visions of the future, whether they write science fiction, or factual works purporting to extrapolate the future from current developments. Just how accurate the author's vision may be, however, will depend largely upon two main factors; their experience of the subject matter, and the extent to which they allow their own prejudices and foibles to influence their vision. Indeed, what is often most interesting about books which seek to peer into the future, is less the predictions themselves, but rather the insight that they provide about their author. This is especially true when the author is heralded as a leader in the field under discussion, and thus himself may have a significant effect on its potential future development. For an example of this, one need only look to Paul Ehrlich (Ehrlich 1968 and 1990) and his writings and predictions on the future of population dynamics to see an example of an individual who had a tremendous effect on his field, but whose predictions have repeatedly failed remotely to match actual developments.

It is true that the issue of what the future may hold for law has rarely received much attention, either from practitioners or from academics, and that this may be seen as symptomatic of the short-sightedness of both, with regard to the prospective upheavals being predicted across society as a result of the increasing use of information technology. Indeed, Susskind posits that lawyers have only just begun to take advantage of the information revolution ­ there is a great deal of legal information available electronically, but as yet lawyers lack the information technology tools and skills to make effective use of it. Thus, the most important step, that of creating the necessary tools has yet to come. Having provided this background scenario, Susskind then moves on to speculate on the effect that the suggested information revolution will have on legal practice, outlining a future in which the very nature of lawyering will change dramatically from the present emphasis on casework towards emphasis upon information management and manipulation for clients.

On its face, then, the text provides first, a snapshot of the present situation, then an assessment of the impact of potential future developments. It appears to seek to reassure lawyers that while change is coming, and quite radical change at that, all is not up for the legal profession. Rather, if the profession accepts that change is coming and moves to adopt business practices which take advantage of the technology, it will segue relatively neatly into a new paradigm of lawyering. However, upon analysing in more depth some of the issues raised by the text, one begins to wonder if some of what Susskind appears to have omitted might be equally, or more, important than what he has included.

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No Future for Jurisprudence or Sociology of Law?

As other commentators have noted (Widdison 1996), the book is more or less wholly oriented around three main strands: legal practice, IT, and management science. However, these three strands surely cannot by themselves support an effective thesis on the future of law; one must also demonstrate an effective understanding of the sociology of law, and a comprehension of the diverse jurisprudential theories of the role and nature of law. This book provides neither in great measure; indeed, it may be said that the jurisprudential readings in the bibliography are more notable for the writings that they omit, than for those they contain. There appears to be little or no place for analysis based on law and economics, or for consideration of contemporary socio-legal writings. It is perhaps surprising, in a text that purports to be looking to the future, to find the key texts to which Susskind attributes "the greatest impact on the thinking underlying this book" lying so far in the past. If Dworkin's Law's Empire (Dworkin 1986) is the most recent text from which Susskind can draw primary inspiration, are we to infer that nothing of similar stature or relevance has been produced since ?

The lack of socio-legal analysis and debate is particularly important, since a key part of Susskind's Future appears to be his belief that there is a latent legal market waiting to be tapped. He claims that this latent legal market can be derived from "the countless instances in domestic and business life which would benefit from legal input but where this has been impractical or too costly in the past"(p 268), the huge potential of which may be unlocked by the availability of new technologies, and the transformation of the legal profession. The major problem with this 'vast' latent legal market, would appear to be that, to gauge from the relative paucity of supporting research adduced in this text, there is as yet little concrete evidence that it exists. Even if one assumes it does exist, there is equally little justification for the assertion that the institution to which it might turn in the future would automatically be the legal profession. For instance, if the future of law turns so heavily upon information management and manipulation, one might claim equally as convincingly that the latent legal market would be better served by turning to existing 'information engineers' such as publishers, consultants, and others who have already grasped the nettle of IT tool development. Indeed, the legal profession has already found its territory is being increasingly encroached upon from exactly such outside professions. In his discussions here, Susskind does little to demonstrate, empirically or otherwise, any weighty justification for his assertions as to the future development of legal demand and supply.

It is also noticeable, as one progresses through the text, that there is one significant voice which appears to be largely excluded from Susskind's analysis, that of the client. Throughout the text one obtains little feel for the place of the clients of the future, and what effect they may have on developments; at times, it appears that they are simply to be swept along by the tide of legal IT. Where clients are mentioned, their wishes are mentioned in general terms, or not at all; rather, it appears to be simply assumed that increased use of technology will bring all manner of benefits, with no consideration of any potential downside. Here, again, some degree of consideration of the likely wishes of a future client base, backed by a measure of empirical work, would have lent the text a more authoritative voice. One aspect of the potential future interaction between the public and the legal system is discussed briefly when Susskind considers 'court kiosks', and even introduces a note of humour, for he as a partner in a large (and surely commercial) law firm must have had his tongue in his cheek when he wrote:

"court kiosks of today generally suffer from being too firmly tied to the proprietary technologies of their manufacturers and developers. To have commercial organisations, which use their own techniques and systems, in charge of the selection of the field of application, of the modelling of the areas of law, of the implementation of the systems and of the marketing as well, can lead to an unacceptable monopoly ­ information could only be made available at their say-so." (p 214)

There is, one feels, an element of the pot calling the kettle black.

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The Role of Lawyers: Information Engineers or Microserfs ?

It is interesting to consider the fate of the current English legal system and its practitioners in the light of Susskind's basic propositions. He sees lawyers becoming "legal information engineers" (p 268), and observes that this will require a fundamental shift in current legal practice with the "strongest candidates for assuming this role in England [being] barristers and specialist solicitors." (p 274). He also envisages a legal profession where the use of technology allows small legal firms to compete effectively with large legal firms (p 230). This raises several interesting, if effectively unanswered questions.

The first is that Susskind leaves us in doubt as to whether in his "Future" he envisages that the increasingly artificial divide maintained between solicitors and barristers will survive. It would surely seem that this could not be so, for if their activities were to become so similar, an attempt to retain a functional distinction would become meaningless. In the age of the legal information engineer there would appear to be little purpose in retaining an upper and lower class of such individuals. In the event that the distinction were to vanish, what would be the resulting implications for the wider legal system ?

The second is the apparent assumption that a significant, not to say overwhelming, portion of this "legal information engineer" function will not be largely usurped as a result of the rise of expert groups in accountancy, management and consultancy firms; and the increased ability to transfer legal knowledge between linked institutions, negating the need for outside professional legal advice. Indeed, if lawyering is deskilled and demystified by the increasing use of information technology to the same extent as other service industries, then, presumably, one could envisage the average legal office of the future requiring only a few 'true' lawyers to handle difficult queries, whilst the more mundane work is carried out by paralegals or legal executives.

The third lies in the assertion that information technology alone will allow the small firm to compete on equal terms with the large, a doubtless beguiling image, but one which overlooks the future cost, not of the technology, but of information itself. Susskind earlier refers to the low take up of LEXIS in UK law firms, suggesting that this may simply be because UK lawyers do less research, or find the system too difficult to use (p 184). However, he does not consider an equally plausible reason: that the cost of using LEXIS or similar databases in a small law firm remains prohibitive if the firm wishes to remain competitive. The rise of Internet access to legal information may, at present, appear to have diminished the cost of that information as WWW sites such as that of the HMSO and AUSLII come on-line, but the cost of effective information tools for filtering the useful from the useless remains high, and holders of rights in information are becoming ever more protective of what they, not unreasonably, see as their future commercial advantage.

A final point of interest lies in the current social status of the legal profession, for it is debatable as to whether the "legal information engineers" of the future will retain the professional mystique surrounding the current legal profession, and, similarly, whether they will continue to command the high salaries, and the professional respect to which lawyers have become accustomed. Semanticists and sociologists might well be interested for instance whether the adoption of the term "engineer" might foreshadow a downgrading in status, salary and respect, in line with a putative transfer from a professional class to a service class.

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Conclusion

It would seem fair to conclude that the title of this book is something of a misnomer, for it is not about the future of law, but rather about the future of legal practice and legal management. As such, an important question about The Future of Law is just how much of it is in fact specific to the future of law, and how much could, equally, have been about the future of engineering, accountancy, stockbroking, lecturing or medicine?(1) Further, if it were not presented as 'the Future of Law', how much of the "Enabling Techniques" Chapter would strike the reader as being either exciting or innovative? Are e-mail, document imaging and voice recognition such novel concepts? That they are presented in this way perhaps tells us more about the present insularity of the legal profession than it ever will about the future.

The text is not especially jurisprudentially rich, nor in places does it appear entirely internally consistent.(2) There are some important ideas, but claims like the much emphasised "latent legal market" lack the degree of rigorous empirical analysis which might make them truly plausible. Important issues such as the future role and status of the law in the UK, and lawyers in society in general, are dealt with perfunctorily, or not at all. Questions about how the legal profession would come to terms with what might well be a significant loss of social prestige, and about the underlying implications of the adoption of terms such as "knowledge engineers" are simply not engaged with. In places, the book reads very much like the many modern 'evangelist' management texts, with assertions backed by anecdotal references and experiences, but with relatively little hard analysis, and no attempt to engage in self-critical dialogue, or to unearth and refute any opposing points of view.

Susskind notes the works of another major writer in this field, Ethan Katsh, criticising Katsh's last book, Law in a Digital World, with the words "Katsh anticipates fundamental change but remains tantalisingly sketchy on detail" (p 267). This is undoubtedly true (Cullen 1996), but one must query just how much further Susskind has taken us. This book treats the reader to an in-depth examination of how technology may transform the mundanities of legal practice, but fails to examine to the same extent the wider implications.

In the final analysis, by subjecting The Future of Law to any strict level of academic scrutiny, either legal or sociological, one may be doing Susskind an injustice. After all, it would be unfair to review Negroponte's Being Digital (Negroponte 1996) as an academic computer science text rather than as a populist current affairs text. If one were to view The Future of Law as an entertaining attempt to draw attention to the impact of information technology on the legal profession, presented in relatively populist language, without the dry rigour of an academic text, then it achieves this aim admirably. However, to suggest as one reviewer has, that "the publication of this seminal work, will help lead to the emergence of a new branch of legal science ­ a new discipline ­ which we may choose, perhaps, to call 'legal futurology'" (Widdison 1996) both misunderstands the meaning of 'science', and overstates the academic importance of this text.

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Bibliography

Cullen, H (1996) Review of Katsch, Law in a Digital World 4 International Journal of Law and Technology 65.

Dworkin, R M (1986) Law's Empire (Belknap Press).

Ehrlich, A & Ehrlich, P (1990) The Population Explosion (Simon and Schuster).

Ehrlich, P (1968) The Population Bomb (Ballantine Books).

Negroponte, N (1996) Being Digital (Coronet Books).

Widdison, R. (1996) 'Future Perfect? A Review of Richard Susskind's The Future of Law' 3 The Journal of Information, Law and Technology <http://elj.warwick.ac.uk/elj/jilt/bookrev/3widdis/>

Footnotes

1. See the practicalities section, p 223 onwards. Back to text.

2. For instance, over the extent to which the legal profession uses computers and is, or is not, computer literate. This seems to vary according to the point being made. Back to text.