United Kingdom Journals

Cyberspace and the Future of Law, Legal Education and Practice in Japan

Luke Nottage

Associate Professor, Kyushu University Law Faculty (Fukuoka, Japan)
Barrister and Solicitor of the High Court of New Zealand

<luke@law.kyushu-u.ac.jp>

Copyright © 1998 Luke Nottage.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

This article develops primarily Susskind's thesis about the future of law given present and expected trends in information technology (IT). It identifies a range of factors that need to be considered when analysing three key components of his thesis, adding extensive comparisons with Japan. Finding the thesis plausible and relevant also to Japan, the article imagines what the day in the life of a `lawyer' in 2020 might be like. It then considers implications for legal academia over the next two decades, based partly on various experiments in recent years. The article concludes on a note of `inconclusion', however, suggesting that the future of law in cyberspace is tied up with much broader issues of technological change and governance amidst globalisation.

Contents

I. Introduction
II. The Present and Future of Law: Susskind's Thesis as Seen from Japan

A. The Dilemma of Hyperregulation and Inadequate Promulgation
B. The Technology Lag in Global Perspective
C. From Reactive Lawyering to Proactive Legal Information Engineering

III. A Day in the Life of a `Lawyer' in 2020
IV. Legal Academia in 2020

A. Entrance Examinations
B. Curriculum
C. Teaching Methods
D. Research, Conferences and Publishing

V. Inconclusion: The Futures of Law?

Bibliography

I. Introduction

Open a recent issue of a mainstream journal nowadays - although `mainstream' still almost invariably means `print-based', unfortunately - and you will probably find at least one article discussing an aspect of law and information technology. This is so not only in the US (e.g. Dowell, 1998) or the UK (e.g. Vick, 1998). It is also true in my native New Zealand (e.g. Walker, 1998). And Japan, where I now teach after post-graduate study and part-time legal practise there in the early 1990s, is now no longer an exception (e.g. Kanda, 1998). As readers of this journal will know too, more and more books are being published in this field as well (e.g. Perritt, 1996; Rowland & MacDonald, 1997; Ibusuki, 1996).

A striking feature of this literature, however, is that so much of it (including all the works just cited) deal overwhelmingly with quite specific legal issues. In the US, and especially the UK and New Zealand, perhaps this is because legal literature and legal academia traditionally have been closely linked with legal practitioners, with their concern for the particular over the general. In Japan, where the Continental European style of legal education holds sway and the legal profession is more compartmentalised, perhaps legal academics write on narrower topics because it is easier to get research grants for them. Or because it is just plain easier, or at least quicker, to write about a narrower topic. We should certainly not jettison the current preference for focus on pressing particular issues. But to do them justice in the long run, we need more explicit analysis of the bigger picture. This is particularly so at this still early stage, as we begin to realise that so many developments in IT are already and foreseeably affecting the law.

A significant step in the latter direction was the publication of a pathbreaking book, The Electronic Media and the Transformation of Law (Katsh, 1989). Katsh's central thesis was that law was premissed on communication and the manipulation of information, so the growing shift from print-based to electronic or digital forms of communication and information implied major transformation in law. Specifically, it implied new techniques of dispute settlement; challenges for legal doctrines and even the state premissed on control of information; related challenges to the character of the legal profession; and greater pressure for substantive equality and more malleable rights. Tellingly, however, Katsh's book attracted far more attention in computer circles than the legal world (Hammond, 1993: n 6). Partly this may have been because the arguments were still quite general. It came also too early. His next major book (Katsh, 1995) came as many more people - even lawyers - were becoming much more familiar with changes in IT. In particular, the exponential growth of the Internet made more immediate his notion of `cyberspace', defined as:

a mature electronic culture - one where electronic networks are much more fully established than they are today, one where many different kinds of data and stimuli can be instantaneously communicated around the globe, and one where the electronic means at our disposal to acquire and process information are richer and much more developed than they are today. (ibid.: 15).

Again, Katsh argued that the emergence of cyberspace will bring more than mere efficiency gains, because `law is, in almost all its parts, dependent on communication and information. A change in how information is used, therefore, brings with it the potential for far broader change in law than does any other kind of technological shift' (ibid.: 7). But he added more specifics than his earlier work, drawing on developments already in law firms and the legal profession. Much had changed over the intervening six years (see also Jacobsen, 1997; Abbey, 1995).

A year later, a partner responsible for IT in a large English law firm was able to take this even further. Susskind (1996) offered a vision of the Future of Law, but one focused especially on the future of lawyers over the next quarter century, given present trends in IT. Even this, however, has been criticised as lacking in specific data and arguments for the range of parameters which would make his thesis convincing particularly to those interested legal sociology and legal theory (Aldridge & Mumford, 1998). In this article, accordingly, I summarise and develop Susskind's thesis, drawing too on insights from Katsh's works. I attempt to indicate, and discuss some of the social, economic, political and legal factors that will ultimately need to be considered in any final appraisal. To add a further perspective to the debate, I focus on contemporary and foreseeable developments in Japan, which may also not be familiar to readers. A broader aim of this article is to encourage more wide-ranging discussion about the developments in IT that he and others have mentioned, as well as others into the 21st century, and their implications for the law.

Part II provides an overview of Susskind's analysis of the dilemmas facing contemporary legal systems, and his challenging prognosis. His thesis seems very pertinent to Japan, given potentially wide-ranging changes in Japanese law and society in the 1990s as well as new theoretical frameworks which have been developed by Japanese law scholars over the last two decades (II.A); emerging trends in IT in Japan in global context (II.B); and pressures on the legal profession (II.C).

Accordingly, with less focus on Japan as such, in Part III I reorganise some insights from Susskind, and more recently Widdison (1997), to imagine what the day in the life of a lawyer or `legal information engineer' might be like around the year 2020. In Part IV, drawing on various developments already, I also imagine some major implications for legal education, alluded to only in passing by Susskind and even by Katsh, a law professor. I conclude on a note of `inconclusion', however, suggesting that the future of cyberspace is tied up with much broader issues of technological change and governance amidst globalisation.

Top | Contents | Bibliography

II. The Present and Future of Law: Susskind's Thesis as Seen from Japan

A. The Dilemma of Hyperregulation and Inadequate Promulgation

Susskind argues that contemporary legal systems face two major and related defects. The first is a `hyperregulated society', characterised by a burgeoning amount of primary and especially (in the UK) secondary legislation, and the continued importance of caselaw. Yet getting legal advice remains expensive, lawyers themselves cannot keep up with new developments, while deregulation not infrequently can be accompanied by `re-regulation' (see also Nottage, forthcoming). Secondly, the problems of hyperregulation are compounded by inadequate promulgation of legislation and caselaw. To add a recent example: for years, the British government refused to make the text of legislation freely available on the Internet, seemingly to preserve income from its copyright (Bennett, 1997). Even now, only the full text of legislation enacted after 1996 is available (Church, 1997). Despite such obstacles, as Susskind had pointed out, citizens are required to abide by the law in their everyday lives.

Turning to the relevance of this dilemma in a Japan, a possible threshold objection can be envisaged: the notions that for psychological or other primordial reasons `the Japanese do not like law' (Noda, 1987) or that they lag behind other modern democratic economies partly due to venerable Confucian-based traditions (e.g. Kawashima, 1963). Such notions now have been thoroughly exposed as overstatement even when first asserted, in the cultural relativist 1960s and 1970s, and as extremely misleading in analysing more recent developments in Japan. Haley (1978) was the first Western commentator to stress that institutional barriers created disincentives to sue, resulting in comparatively low litigation rates, rather than indelible cultural constraints. Ramseyer (1988) developed further this rationalist explanation, arguing that the comparatively greater predictability of judicial process in Japan still allowed litigants to settle out of court in the shadow of the law. Evidence was offered from traffic accident dispute resolution (Ramseyer, 1989).

Some have argued that this area is characterised by particular predictability, and Ramseyer's economic analysis of Japanese law may not apply in other fields, but his logic is compelling. Foote (1995) has stressed the need to enquire into the emergence of a key element of predictability in traffic accident dispute resolution, standardisation of judgments, and found considerable judicial activism in the face of technological and social change, a feature he has stressed in other areas of private law such as labour law (Foote, 1996). Analysing the traffic accident dispute resolution system as a whole, Tanase (1990) concluded by identifying some latent contradictions or instabilities in a more `managed' system. These may also underlie the persistent claiming and settlement mechanisms at work in product liability disputes in Japan under the new strict liability legislation (Nottage & Wada, 1998), although the new system is at an early stage. In contract planning and dispute resolution by Japanese parties, at least in trading relationships, what is striking in ongoing empirical comparisons with New Zealand and even US parties are some key commonalties (Nottage, 1997b), although these also leave or create the space for interesting particularities (Nottage, 1998a).

In public law, contrary to the received wisdom that the bureaucracy has run post-war Japan, Ramseyer and Rosenbluth (1993) developed a public choice model concluding that the politicians are firmly in control in Japan. They mean that in terms of power or potential to dictate policy. Hence, structural features even of a new electoral system (Asaka, 1997) - combined with politicians' inherent desire to be re-elected - may still explain, for instance, politicians' complete unwillingness to act decisively to resolve urgent social problems like the financial sector crisis. This crisis, incidentally, has been proven completely impervious to any quick fix by the supposedly all-powerful Ministry of Finance. It is not just that global financial markets have changed, making regulation more difficult. On the contrary, we should also remember that Japan's economic regulators are largely responsible for creating the `bubble economy' of the late 1980s, which resulted in the present mess. Although the bureaucracy in Japan may remain an important - possibly still the most viable - social elite, this is a trait shared with many contemporary industrialised democracies, with the notable exception of the US (Drucker, 1998). More generally, other recent analysis shows how Japan shares basic fundamental parameters of contemporary democratic societies (Richardson, 1997), even if different constellations of interests may lead to policy results different from those in Europe or the US (e.g. Anderson, 1993).

Thus, the response to any blanket objection along the lines that `law in Japan' will forever be an oxymoron, should be that this is likely to reveal far more about the background and idiosyncrasies of the person taking this position, than anything original and important about Japan in the late 1990s. This is particularly so when the comparison is limited to Japan and the US, since the latter's legal system is exceptional in many respects (Nottage, 1997d). Instead, we should listen to those in Japan who discuss the phenomenon of `juridification' or `legalisation' (hoka). Tanaka (1998), for instance, begins his analysis by noting that this is a powerful trend in Japan, as elsewhere. His interest, however, is two potentially conflicting counter-tendencies, `anti-legalisation' (a denial of the legal, and a return to ordering through social norms) as opposed to `de-legalisation' (a softening of legal norms). While he suggests that the former may be underpinned by Japan's shorter history in developing Western legal norms, it is possible in a theoretical and possible range of other societies (see e.g. Wada, 1997). Tanaka also notes that the latter tendency is a near-universal one in complex industrialised democracies. He concludes by urging continued strengthening of the formal legal framework in Japan, to better manage both counter-tendencies. While this and other analyses of hoka tend still to be quite abstract, some astute commentators have begun to link them with trends in information technology (e.g. Murakami, 1998). Overall, they suggest that Susskind's thesis as to the dilemma of hyperregulation and inadequate promulgation of law is also very relevant to Japan.

At a more practical level, copyright in primary and secondary legislation is not held exclusively by the Japanese government, and accordingly legislation is increasingly available on the Internet (see e.g. Ibusuki, 1996: 63-4). While I am unaware of any statistics as to whether Japan in recent years has been enacting greater volumes of legislation, this seems likely as Japan goes through a period of considerable socio-economic restructuring in the 1990s (Nottage, 1998c). On the other hand, following the civil law tradition, there is no doctrine of stare decisis and caselaw is not technically a source of law. Although in practice both caselaw and its value as precedent are highly and perhaps increasingly important, only a comparatively small proportion of judgments are fully reported (Haley et al, 1994: 75-8). Nonetheless, this may change in the wake of the current debate now on how to preserve older caselaw. Much of that may end up recorded electronically. Caselaw is also already increasingly found on the Internet, although far less comprehensively than in many common law jurisdictions.

`Administrative guidance' (gyosei shido), namely `action of no coercive legal effect that encourages regulators parties to act in a specific way in order to achieve some administrative aim' (Young, 1984: 924), may decline overall - or at least in particular sectors - as a result of the Administrative Procedures Law 1993 (Levin, 1995a; Koederritzsch, 1996; Duck, 1996). This will be so particularly if current law reform to merge and streamline the current array of government ministries and agencies is enacted (Editorial, 1998a). Although this initiative is partly a cost saving measure, a key proposal is to do away with broadly worded enabling provisions (kengen kitei). These had allowed much freedom of action for Japanese regulators, especially in central government. Even with less freedom to manoeuvre, however, a major attraction of `soft regulation' everywhere - its cheapness (Ramseyer, forthcoming) - will probably secure the future of administrative guidance in Japan. But it will probably also be recorded in writing, pursuant to Article 35(2) of the 1993 Law (see Levin, trans, 1995), whereas previously the guidance - or at least the most contentious guidance - had often only been oral.

Perhaps most importantly, an Information Disclosure Bill was approved by Cabinet on 27 March 1998 (c.f. Repeta & Chafee, 1998). After their success in Upper House elections in July, opposition parties called for even broader based disclosure rules for public bodies, including the express provision of a general `right to know' (shiru kenri); application also to special legal entities (tokushu hojin), often spun off from government agencies; and more limited exceptions (Asahi Shimbun, 1998a). As predicted (Asahi Shimbun, 1998b), this made discussions more difficult; the special session of Parliament closed in October without enactment of a new law. But the ruling Liberal Democratic Party made some concessions, and strong public pressure is being maintained to give priority to enactment in the next special session (Editorial, 1998b). Meanwhile, 580 local bodies already have disclosure by-laws and new ones continue to be promulgated, often going beyond the requirements in the original Bill (e.g. the city of Sendai: Asahi Shimbun, 1998c). In any event, much official information is expected to be disclosed over the Internet, with the size of the market involved in providing this estimated to increase twenty-fold to 24.2 billion Yen by 2002 (Asahi Shimbun, 1998d). By introducing online storage systems, Japanese office equipment manufacturers like Ricoh are positioning themselves to benefit from this, as well as the expanded discovery duties under the amendments to the Code of Civil Procedure in effect from January 1998 (Asia Pulse, 1998a).

Thus, in practical as well as theoretical terms, the posited tension between increasing volumes of law and regulation, and inadequate promulgation, seems highly relevant to Japan today or in the foreseeable future.

Top | Contents | Bibliography

B. The Technology Lag in Global Perspective

Susskind further argues that such dilemmas are exacerbated by a so-called `technology lag'. Since the 1960s, IT has allowed huge advances in data processing, namely the capture, storage, retrieval and reproduction of data. This encourages the production and amendment of legislation and caselaw, and the growth in lawyers, neighbouring professions, and their firms. Yet IT still has not been applied or developed enough to improve knowledge processing. This represents `value added', in helping to analyse, refine and render more manageable the mass of data which data processing spawns. Thus, simply promulgating vast amounts of raw legal material, such as legislation, is not enough. It may even be counter-productive, spawning more legislation (e.g. through calls for amendment) or outright confusion. Instead, legal material needs to be structured, cross-referenced, annotated, and linked to checklists and document production for those affected. Truly adequate promulgation also requires that this value added be transmitted to all - and only - those affected by the law and any changes therein. One of Susskind's central theses is that trends in IT can allow this by around 2020.

The problem of the Technology Lag would appear to apply more straightforwardly to Japan. Here too, however, we may meet with some threshold objections Rosen (1997: part III) suggests that the very nature of Japanese society, and the unwillingness of Japanese elites - particularly in the Japanese bureaucracy - to allow rapid diffusion of information which might be difficult to control and ultimately threaten their authority, are related to Japan falling behind in developing the potential of the Internet:

Early in 1996, Japan accounted for only two percent of the world's users of the Internet. The number of host computers connected to the Net in Japan was 160,000, far fewer than the U.S. of course, but also less than countries with populations smaller than Japan's 125 million: Germany, the UK, Canada, and Australia. (Citing Japan's Internet Connection - Who's Who, What's What, Focus Japan (Jan/Feb 1996) at 1.)

Already in autumn 1995, however, a Japanese commentator was pointing out - online! - that:

The Internet is booming all over the world, and Japan is no exception. Just as is happening in the United States and Europe, many Japanese corporations are starting to use the Internet. In 1995 alone, more than fifty companies started to offer Internet connection services on a commercial basis. The number of host computers in Japan directly connected to the global Internet is doubling every 12 months, showing the same rapid growth patterns as elsewhere in the world.

The exact number of Internet users in Japan is hard to obtain, but a good guess may be around a million. Commercial online PC network services such as Nifty-Serve and PC-VAN boast three million users. These services are now offering partial Internet access: e-mail, telnet (remote access), and FTP (file transfer). They are expected to offer full Internet services (IP connection) sometime in 1996. This will further boost the diffusion of Internet in Japan. (Aizu, 1995)

This view has proven more perceptive. As of October 1997, for instance, the number of Internet users was estimated to stand at 10 million, with the number of Internet Service Providers (ISPs) reaching over 2,300 (MPT ed, 1998). According to an analysis by marketing agency eMarketer (<http://www.e-land.com/estats/net_geo_2.html>), Japan had 7.2% of the global share of Internet-linked households in 1997, compared to 6.2% for Germany, and just 3.2% for the UK. This is still much less than North America (including Canada), with 71% of the world's households. And it is true that of an estimated 60 million Internet users world-wide as of mid-year 1998, two-thirds reside in the US (37 million users) and Canada (just over 4 million). As Rosen also points out, the lingua franca of the Internet is still overwhelmingly English; eMarketer (1998) estimates that some 90% of Internet users today are English-speaking, with the top nine countries in Internet links per 1,000 citizens being either English-speaking or Nordic. But existing trends suggest that change is already on the horizon:

Recognizing the rapid growth rate of net users in Europe, the Asia-Pacific Rim, South America and several underdeveloped regions of the world, eMarketer projects that the non-US portion of the world will have more net users than the US by the beginning of the new millennium in 2000. (<http://www.e-land.com/enews_eover2.html>)

Behind this global shift, in eMarketer's view, lies increasing saturation in the US, but also (i) emergence in telecom deregulation and lower costs in previously controlled markets; (ii) increased PC and modem penetration, particularly in Europe, Japan etc; (iii) the growth of eCommerce outside the US; (iv) technological infrastructure developments such as the deployment of midband and broadband solutions; and (v) the continued popularity of online services in Europe. Also of potential medium- to long-term significance is that in 1993 a universal character code was agreed upon, containing nearly 40,000 characters from different languages, based on a 16-bit code generally called Unicode. This includes more than 20,000 kanji, Chinese characters with variants in written Japanese (Nishigaki, 1998). This should encourage the expansion of cyberspace in languages other than English.

Of course, analysing the growth of the Internet and particularly the growth in various jurisdictions is fraught with hazards even for the experts (see also Network Wizards' Internet Domain Survey FAQ, <http://www.nw.com/zone/WWW/faq.html>).  Estimating its future growth, and major likely determinants, is even more difficult (see also Part V below). But this more recent comparative data and analysis does suggest that again we should be wary of seizing on limited evidence at a certain point of time, to construct reductionist theories premissed on supposedly ingrained cultural or societal traditions. And in making comparisons, it is important not to focus overly on the US, which exceptionally has benefited from a major head start in Internet development (and continued support for IT generally) from its defence establishment - state-supported capitalism of a scale unknown in Japan, at least in recent decades! Perhaps not surprisingly, these two points demanding caution in analysing developments in IT (the timing and scope of the analysis, and the need for comparisons going beyond just the US and Japan) parallel the difficulties still with some recent approaches to Japanese law, sketched in Part II.A above.

Let us focus briefly, then, on some key results from one of the most recent careful and broad-based comparative analysis of IT trends, the Information Technology Outlook 1997 from the Organisation for Economic Cooperation and Development (OECD ed, 1997a: any unattributed data in the rest of this section come from this report), as well as some other recent studies. Consider first one crucial building block of the Internet, and of networked computing generally: servers linking together groups of computers (ibid: 32-9). Certainly, as of 1994, the US accounted for 55% of the world's installed LAN (local area network) servers, compared to 32% for Western Europe and only 13% for the rest of the world (including Japan). Correspondingly, 64% of corporate PCs were on a network in the US in 1995, but only 21% in Japan. Japan also had only 24 PCs per 100 white-collar workers in 1990, compared to 104 to 100 in the US. Not surprisingly, given this lack of infrastructure within the office, in early 1996 only 299 Japanese companies were reported to be taking orders and only 48 settling credit card payments with outsiders through the Internet, compared to 8000 and 5000 respectively in the US. An October 1996 survey reported that 64% of 64 respondents, among 150 Japanese firms conducting electronic commerce over the Internet, were not making a profit from it. One reason given was the cost of publicising a website (OECD 1997b: 8).

As just mentioned, however, the number of Internet users overall has continued to grow in Japan, while costs appear to be coming down (e.g. Sanyo's new commission-based, not fixed-rental, `electronic mall': Japan MarkeTracker, 1998). By March 1998, there were reportedly almost 5,000 `virtual shops' on the Internet (Sekimoto, 1998). Most sales are of software, followed at some distance by publications, hardware, entertainment, online and travel services (MPT, ed, 1997). According to a Network Wizards survey in July 1998, altogether there were 118,453 `co.jp' host servers, roughly indicating Japanese companies with a presence on the Internet. This is still much less than the 378,249 `ac.jp' or academic institution hosts in Japan (Japan MarkeTracker, 1998). It remains in marked contrast to the overwhelming importance of commercial websites in the strong Internet growth in the US until now. But recent research shows that electronic commerce is also much less developed in France, Germany, and the UK (eMarketer, 1998). The more recent trends in Japan suggest that Japanese companies are now joining the Internet bandwagon with relative alacrity. Further, as in the US, at least the larger Japanese firms have started to actively develop `intranets' (Kumon, 1996). These are computer networks within a firm (or affiliated firms) using techniques common to the Internet, such as HTML and TCP/IP (see generally Stoakes & Hunt, 1998).

Such recent developments are also underpinned by other data and analysis in the OECD's Information Technology Outlook 1997. Among Japanese companies implementing open computer systems, the percentage of those implementing client-server computers is also increasing. In Japan, 74,800 UNIX servers (a major portion of the high-end `enterprise server' market) were shipped in 1995, up 51% over the previous year. We should also remember that while server suppliers in 1995 were mainly US companies like IBM, Japanese companies like NEC, Toshiba, and Fujitsu and Hitachi were also in the top ten, with Germany's Siemens Nixdorf taking tenth place. Japan also has Silicon Valley style success stories, such as Allied Telesis, founded in 1987 and now with a commanding global position in one aspect of the networking market (Takagi, 1998). Although growth in the venture capital sector overall has generally been stifled (Sibbett, 1998), the many structural changes in the Japanese economy nowadays should create a much more exciting environment for new ventures at the end of the 1990s. In addition, shipments of workstations (often used as middle-range servers) in Japan and in the US showed roughly equal growth in 1990-5 and each totalled around US$4 billion in 1995, much better than Western Europe. At the lower end, PCs now account for 70% of the total LAN server market. The use of servers in Japan therefore will also have been boosted by growth in PC sales in 199C. That was:

unprecedented, with the last quarter of 1995 up 93% over the same period in 1994. To some extent this was a cyclical trend, following several years of low or negative growth, but there were also structural factors. For a long time NEC (with over 50%) led the market with an architecture that was incompatible with IBM/DOS standards. In 1993, Microsoft began producing a Japanese-language version of its Windows operating system (OS), with versions that were compatible with NEC and IBM. The hardware price war, launched by the US manufacturers in 1992-93, also revived the Japanese market, and the `open price' system spread rapidly. IBM-compatibles saw their share climb from 16 to 30 percent of the market between 1993 and 1994. Japanese PC manufacturers changed their strategy: Fujitsu began producing IBM compatibles at the end of 1993, while the sole manufacturer of NEC compatibles, Seiko Epson, began producing IBM compatibles in September 1994 and announced in January that it would stop producing NEC compatible PC-98s. Finally, in late November 1995, the Japanese version of Windows 95 was launched. (OECD 1997a: 18)

These developments and continued strong sales growth will have improved the low ratio of PCs to white-collar workers in Japan, mentioned above, although challenges do remain in that the practice has been to outsource IT work and to have a comparatively low proportion (some 1%) of dedicated in-house IT specialists (Kumon et al, 1998: 21, 26). More use of PCs should also bring more use of packaged software, encouraging more information exchange between companies which had developed custom-designed software in a spirit of fierce independence and competition (ibid: 24-5; see also Mashima, 1996).

Overall, the strong growth in PCs in Japan has maintained steady improvement since the early 1980s in installed PCs per 100 people, to about half the ratio of the US. In 1995 Japan's ratio remains roughly equal to that for Europe (OECD, 1997a: 18-21), and in 1998 it was just under that of France, Germany, and even the UK (eMarketer, 1998). Indeed, by 1998 (ibid), Japan had a higher proportion of households with PCs who actually use them to access the Internet (18%) than the US itself (16%), trailed by Germany (11.7%), the UK (9.5%), and France (6.5%).

Again, there remain challenges for Japan. One is the effective deployment of computers in schools. The proportion of schools with computers increased steadily throughout the 1980s, with about 90% of secondary schools having between 12-32 computers. But in 1994 the number of students per computer was still five times that of the US and the UK, albeit only 1.4 times that of France. Another problem, also alluded to briefly by Rosen (1997), is that in 1995 68% of computers connected to the Internet in Japanese schools were hidden away in computer rooms (OECD, 1997a: 118, 1135). At the end of 1997, only an estimated 10% of schools were connected to the Internet anyway, compared to 78% of US schools. But we should recall that it took the Clinton-Gore initiative in the US, the birthplace of the Internet, to commit to providing the resources there to try to link all schools to the Internet by 2000. Recently, the Japanese Ministry of Posts and Telecommunications (MPT) proposed a technologically even more ambitious, 840 billion Yen (£4.2 billion) `Nationwide 40,000 School Fiber Connection Program'.

The project has been shelved, seemingly due to political uncertainties following the Upper House elections in July 1998, leaving a paltry connection subsidy of 2 billion yen (£10 million) based on the Ministry of Education's suggested `2 hours daily of Internet connection time'. Reviving the project or devising other measures to solve this problem in the long-term, however, form key policy recommendations in a recent report to the Prime Minister (Kumon et al, 1998: 32-5). A related recommendation is for central as well as local government to provide financial support for the construction and use of Community Area Networks (CANs), not just developing `trunk line' networks and infrastructure (ibid: 18-9). In fact, Japan's MPT has just allocated 4.7 billion Yen for rural communities to build `multimedia pilot town projects.' This budget will fund 48 structures, including 11 clinics, 9 town halls, 6 schools, and 6 museums. The proposals from local communities must show how the latest telecommunications and broadcast technologies will be used in practical applications (Japan MarkeTracker, 1998).

Jumpstarted by the resumption of PC sales stalled during the early 1990s, then, Japan is at least holding its own against major European economic rivals, while strong growth in the US over recent years may begin to level off. This should not be too surprising. The OECD's Information Technology Outlook 1997 shows that on a sales basis, the IT sector grew more strongly in Japan than in the US over 1987-94. It remains a smaller proportion of GDP, but is almost identical to France or Germany. On a production basis, the sector experienced faster growth than all these countries in office and computing equipment overall, over 1980-93, as well as radio and television equipment. Even in 1993, when several US commentators were proclaiming that the US had come back to win the race in key sectors of IT (e.g. McInerny & White, 1993), Japan still had a significantly higher proportion of IT in manufacturing value added (10.5%). This overall performance may have declined since, since a key component is the semiconductor industry, which has come under even stronger competition as the Asian economic crisis forces Korean and other manufacturers to desperate measures. More generally, Japan is a major exporter of IT; although a sign of global competitiveness, it brings vulnerability to any slowdown in the global economy. On the other hand, Japan's IT sector has steadily increased its share of manufacturing R&D, now surpassing the US. Continuing this trend, in fiscal 1997 one of the few areas of increased capital investment for Japanese firms - across the board, but especially by mid-size firms (with a 20% increase) - was in IT (Asia Pulse, 1998b). Meanwhile, globally competitive Japanese conglomerates like Sony have branched out into the PC market in 1998. In the longer term, moreover, some now believe that the PC will increasingly be replaced by specialised devices and appliances taking advantage of Internet standards, with the major beneficiaries being Japanese companies like NEC, Hitachi and Sony (Economist, 1998a).

The Japanese government, of course, remains well aware of the importance of the IT sector, one of the few areas with growth potential in the current economic slump. But even the powerful MPT seems to be relying on industry to develop the new markets - and indeed to self-regulate, co-ordinating for instance the establishment of the Cyber Business Association and then letting it develop guidelines for members on privacy issues, for instance (CBA ed., 1997; see also Matsumoto, 1998). Attempts to regulate directly, even with respect to hacking, are met with concern (Editorial, 1998c). Also, the amounts of direct government support for industry promotion remain relatively small. In fiscal 1996, for instance, the Ministry of International Trade and Industry (MITI) allocated around 32 billion Yen (£160 million) to promote electronic commerce in general. MITI appears to have learned a lesson from its hugely costly failure to promote certain IT developments since the mid-1970s, seen as a more general turning point in Japan's industry and economic policy overall (Callon, 1995; Schaede, 1996). Instead, in 1996 MITI invested £170 million in promoting general measures for further job informatisation in the public sector, such as paperless patent applications and development of a new-generation statistical system. This is one part of a five-year plan initiated in December 1994 to increase administrative computerisation (see also Kumon, 1996). This is already showing significant results in terms of PC density and networking, partially addressing Japan's very poor comparative performance as of 1993 (OECD, 1997a: 106, 213-4). It should also help remedy the emergence of independent and hence often incompatible IT systems in the various government agencies or ministries, which has contributed to insularity and divergent agendas (c.f. Kumon et al, 1998: 19-23).

A key challenge remains the regulatory framework for telecommunications, since this affects IT investment and performance. Recent proposals to reorganise the Nippon Telegraph & Telephone Company, a semi-public erstwhile monopoly, were initially met with justified scepticism by new or potential competitors (e.g. Hahne, 1997). Deregulation does seem to producing significant results, however (MPT ed, 1998b). Even in 1996, Japan's combination of local calling plus Internet Service Provider charges was on a par with France, and significantly less than the UK or Germany, even if significantly more still than in the US (OECD, 1997c). Another recent policy recommendation to the Prime Minister, however, was to encourage better-fixed charge calling services (Kumon et al, 1998: 52-5). More generally, it is significant that this and other recommendations for specific further deregulatory measures are emerging from new lobby groups, supported by major industry players. It is also crucial that this debate is conducted within the framework of the General Agreement on Trade in Services (GATS: see <http://www.wto.org/wto/services/tel.htm>; c.f. generally Vogel, 1995). Strong vested interests and bureaucratic institutions remain, of course, but Japan should not be seen as unique in this respect.

These, then, are some of the key parameters to explore further in analysing current and future IT developments in Japan and world-wide. Already, generalised notions that IT in Japan - particularly the expansion of cyberspace through the Internet and networked computing - will be stalled by bureaucratic elites or the essential nature of Japanese society, are belied by recent developments, especially when seen in broader comparative perspective. If Susskind is right about the potential for IT to close the Technology Gap in the UK, at least, his arguments in this respect also seem highly relevant now to Japan.

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C. From Reactive Lawyering to Proactive Legal Information Engineering

Another key argument of his, however, is that the necessary increase in `knowledge processing' - particularly the creation of all this added value - will call for a large-scale reorientation of lawyers and legal professionals. Rather than today's primarily `reactive' work, responding to clients' requests for specific advice often at very late stages of negotiating a deal or only after a dispute has developed, the skills and energies of lawyers will need to focus on proactive, general legal risk management. They will have to become `legal information engineers', aiming to provide manageable legal information, in varied forms (such as those listed just above), for corporate and individual clients to incorporate into and refer to at all stages of their activities or everyday lives. This information will be more general, aimed at a broader audience (`the latent legal market'), and provided on a different economic basis, than most advisory services provided by reactive lawyers today. Susskind argues that lawyers will need to rise to this challenge because of today's `pressurised legal market-place'. This includes greater competition for lawyers, from other lawyers or neighbouring professional groups; greater demands from clients; internationalisation of the business world; an overloaded justice system; and so on.

In Japan, law firms are now having to face the broader organisational changes brought about the increased use of information networks by their clients, a general trend observed already in the early 1990s (OECD, 1997a: 67-73). As the head of Sanyo Electric's Legal Department put it recently, `the time has come when we can no longer talk of legal work without the Internet' - or, indeed, his company's growing intranet (Hamabe, 1998). Up to now, the work of Japan's practising attorneys (bengoshi) has been even more reactive than that criticised by Susskind, focusing on dispute resolution and representation of parties in court proceedings. However, there are signs - admittedly based on survey data dating mainly from the late 1980s, the height of Japan's economic boom (Hamano, 1995; 1993: 39) - that even they are turning more to transactional work and `preventive lawyering' (yobo hogaku). This requires more the skills of the `legal information engineer', and the development of networked computing in Japan (particularly among corporate clients) will require bengoshi to develop these skills while providing them too with the necessary technological infrastructure. In addition, a range of other `lawyer-substitutes' (Henderson, 1997) provide services related at least in part to legal matters, including tax attorneys (zeirishi), patent attorneys (benrishi), administrative scriveners (gyosei shoshi), judicial scriveners (gyosei shoshi, dealing with company documents and so on) and many others. Much of their work may still be reactive, but it is less so that that of bengoshi. And increasing network computing should also allow more ready interaction between these professionals and bengoshi.

Some may object that bengoshi have few incentives to develop skills and networks in these directions, because of their jealously policed statutory monopoly on representing clients in court, and on providing legal services which are not explicitly permitted by statute to be performed by the abovementioned lawyer-substitutes. Significantly, however, this monopoly was specifically put on the agenda in the former Hashimoto government's `administrative reform' (gyosei kaikaku) initiative (Hamano, 1998; see also Gyosei Kaikaku Iinkai, 1997: 67). The immediate future of this wide-ranging agenda remains uncertain. Hashimoto resigned in July 1998 in favour of a new Prime Minister from the same dominant LDP, Keizo Obuchi. The latter appears even less able to make tough political and economic decisions (Economist, 1998b). But Hashimoto's resignation was precipitated by opposition parties' embarrassingly strong showing in Upper House elections, led by the dynamic Naoto Kan (FEER, 1998). And on June 16, 1998, a LDP Special Committee To Investigate the Civil Justice System had already released its report (reproduced in 644 NBL 64). The report is rather short and diffuse, listing - without attempting to prioritise - a raft of issues that need to be further studied, ranging from the legal aid system and increasing the number of legal professionals, to legal education reform. But the analysis is premissed on an increasingly complex, information-based, and global society; transparent rules and self-responsibility; and deregulation.

Another report on civil justice reform is expected soon from the Japan Federation of Economic Organisations (Keidanren), and may have more immediate impact. Japan's corporate sector, much more exposed to competitive pressures in their own markets both domestically and increasingly abroad, continue to voice dissatisfaction with legal services provided by bengoshi. An October 1997 survey by the Nihon Keizai Shimbun, Japan's leading financial newspaper, revealed that overall 25% of corporate respondents were dissatisfied with them, while another 16% had at least some complaints. About a third said bengoshi worked too slowly (32%), lacked business experience (32.6%), charged high fees on an unclear basis (34.9%), or were unable to handle properly large or international cases (Choy, 1998). Not surprisingly, Japanese companies are strengthening their in-house legal departments (Nikkei Weekly, 1997). Such developments should make bengoshi all the more aware of competitive pressures in the Japanese legal environment (see generally Kitagawa & Nottage, forthcoming). Indeed, the more progressive bengoshi as well as a number of other commentators refer precisely to a `latent' legal market, which could be opened - increasing the pie for all - by liberalising access to the market for providing legal services currently monopolised by bengoshi (e.g. Nasu, 1992).

Already, significant inroads are being made into this monopoly. For instance, in 1990 agreement was reached among the Japanese Federation of Bar Associations (Nichibenren), the Ministry of Justice, and the Supreme Court General Secretariat (which administers the courts), to increase the number of those passing the fiendishly difficult bar exam and entering the Legal Training and Research Institute (LTRI) beyond the magic 500 per annum, to 700 per annum. In 1997, in fact there were 746 (Levin trans 1998). Agreement then was reached to increase the number to 1000 from 1999, and to consider raising it again to 1,500 in the medium term. The increases seem to be mainly the result of pressure from the corporate sector stemming from the boom days of the late 1980s (Hamano, 1998).

The Justice Ministry may have gone along with this because more graduates overall means more public prosecutors. The Supreme Court General Secretariat also stood to benefit from more graduates becoming judges, in a period when the proportion was declining as more preferred to go into the more lucrative and independent careers as bengoshi. Despite an increase in its workload, the Secretariat has not pushed for more funding for the courts and for more judges, probably because it wanted to maintain or reinstate its `apolitical' image after controversy in the 1970s (Abe, 1995); but it seems to have been quite happy for other interest groups such as the Keidanren to push for them. Some suggest that Japanese courts have not regained - or never really had - sufficient independence, and hence prefer a limited number of judges so as to better directly control them (Miyazawa, 1994). But the fact is that the number of judges is now likely to increase, and this brings them benefits. We should also not leave out of the picture the role of academics, the media, and interest groups representing a range of affected citizens. Their efforts and concerns, heightened by the wide-ranging structural changes sketched in Parts II.A and II.B above, help explain why the initiatives to increase the number of LTRI graduates bore fruit in the 1990s, despite the economy slowing down drastically, and they underpin the ongoing debate on expanding the legal profession in Japan. While complete liberalisation is not foreseeable in the immediate future, comparative research shows that increases in the number of lawyers permitted to practise is a key factor in large-scale transformations of the profession (e.g. Abel, 1988).

Yet another factor stressed by Susskind, the overloading of the civil justice system more generally, is perhaps even more acute in Japan. The number of judges has remained almost constant while civil litigation rates have increased since the 1970s (Nottage & Wollschlaeger, 1996). It takes on average 36.8 months to get a first instance judgment in a contended case (Choy, 1998). Understandably, one specific recommendation in the LDP Committee's June 1998 report is to increase funding for the courts, 310 billion Yen in fiscal 1998 or about 0.4% of the government's total budget. Again, the judiciary seems quite happy for others to push this agenda. By now they have largely done what they could by way of improved efficiencies and case management, which underpinned the recent amendments to the Code of Civil Procedure (Taniguchi, 1998). As the LDP Committee report suggests, there seems to a growing awareness that such technical changes are not enough to solve all problems in Japan's judicial system. Practitioners in Japan are also beginning to realise that procedural changes require a reorientation in their thinking and everyday practices. On April 24, 1998, for instance, Nichibenren established the new `Japan Law Foundation' (Homu Kenkyu Zaidan) to promote continuing education, and operate as a `think-tank for legal professionals conducting research into policies to achieve a deregulated and juridified society'. As another sign of the times, it brings together bengoshi with lawyer-substitutes, with one project already underway with judicial scriveners is `research on disclosure systems in a high information/communication society' (Koyama, 1998).

In addition, in 1996 the central government provided funding to hitherto almost exclusively privately or bar association funded legal aid programmes administered by the Legal Aid Association. Legally aided cases, especially consumer credit bankruptcy cases, doubled to over 7,000. The Association's entire budget remained a paltry 1.3 billion Yen (£6.5 million), however. Combining this with the government's 310 billion Yen (£1.55 billion) budget for operating the courts (albeit in 1998) gives a total of 311.3 billion Yen (about £1.56 billion). This compares to some £6 billion in government funding for the justice system in Germany, and £2.1 billion in the UK in 1995 (Prais, 1998): both countries with significantly smaller populations and economies. Suggesting that the latent demand for legally aided cases was some 40,000 in Japan, a report compiled by representatives of Nichibenren, the Supreme Court, the Legal Aid Association, and academics was presented to the Minister of Justice on March 23, 1998. The report raises many issues (Kojima, 1998), but at least this aspect of reforming the justice system is also now more firmly on the agenda.

In sum, while less pressing than in the UK or the US, Susskind's advocacy of a large-scale reorientation of the legal profession is important too for Japan.

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III. A Day in the Life of a `Lawyer' in 2020

Assuming then that Susskind's overall thesis is plausible and relevant also to Japan, by 2020 most lawyers (and lawyer-substitutes) will be `legal information engineers'. How will your working day be if you are one of them?

Of course, your day will rarely begin by commuting to your office. At present, most lawyers await clients in their law firms. Increasingly, although far less so in the case of Japanese lawyers or even lawyer-substitutes, they visit clients (especially corporate clients) in their offices. All this follows from the still reactive nature of lawyers' work. By 2020, however, almost all work of legal information engineers will be proactive. Your day will begin by switching on your computer and communications equipment, at home or almost anywhere.

A customised personal newsletter will await you. Overnight, advanced software will have searched resources in cyberspace to collate `all but only' documents relevant to your work and interests. Already, some software downloads material from particular websites while you sleep - indeed, this feature is pre-installed on my new Sony Vaio PC notebook computer. But this requires prior website selection, and aims primarily at saving telecommunications charges by accessing the Internet at off-peak times. Further, search engines are still quite basic, relying on keyword searches. By 2020, these will be much more sophisticated. You will have built up a detailed profile of current interests, adding parameters such as minimum length, and software would locate and download any new corresponding material. Already, a major legal publisher in New Zealand offers a basic version of this, distributed daily by e-mail (Brookers Legal News Service, <http://www.brookers.co.nz/products/productdocs/legnews.html>). This relies on prior input of keywords, however, and I have not seen any analysis of its success or otherwise. A litmus test may be whether competitors start offering similar or better services.

Future newsletter software probably will also be able to identify links to, or even directly update, your prior or ongoing work (`do-it-yourself' packages, intelligent checklists, standard form documents, commentaries, collaborative work projects, etc). This would help set a schedule for the rest of your day.

The software may also help identify other individuals whose work or interests had been affected by new developments to a significantly overlapping degree. Some of these will be other legal information engineers within your own `law firm'. Interestingly, however, Susskind suggests that access to much improved information processing capabilities will allow smaller law firms to compete on more equal terms with the very large law firms which gained prominence in the UK throughout the 1980s and early 1990s, as in the US (Galanter, 1992). There is a possibility that the future cost of the information itself, not just the technology, will prove too great for smaller firms, as with ready access to LEXIS/NEXIS or WESTLAW databases today (Charlesworth, 1997).

However, it seems more likely that `rather than an emphasis on large, permanent law firms, the future will be characterised by individual lawyers combining and recombining into teams - 'ad hoc law firms' - in order to work for one particular client, or on one particular case or set of cases (Widdison, 1997: 151-2). Widdison argues that this tendency will follow not only from reduced advantages from economies of scale. It will be reinforced by an ethos of professionalism which had generally been associated with a strong emphasis on the role of the individual practitioner, who remains an enduring part of the English legal profession, along with a deep-rooted tendency for clients to form strong personal relationships with `their own' lawyers, whom they feel they can and should choose (see also Arthurs, 1998). These features are also to be found in Japan, and bengoshi concerned about what has hitherto all to frequently portrayed as the relentless onslaught of the mega-law firm will no doubt breathe a sigh of relief. Yet, rather than combining with others on major (often `public-interest') litigation as in the past and still today, bengoshi will need to prepare themselves for collaboration in more proactive legal information engineering projects.

Further, in a more internationalised business and legal world, many more such collaborators would be in law firms overseas. And other individuals would be information analysts and providers with backgrounds from what are still considered distinct disciplines, such as tax, finance, business management, and so on. They too would be primarily involved in proactively analysing and organising specialised information in a user-friendly fashion, and one way of achieving that will be to work with those with different backgrounds to provide one package. Your affiliations with such individuals or their firms may also be quite loose, perhaps just involving mutual consent to update and disclose profiles of interests. But occasionally they could come together more closely, e.g. to complete a specific project linked through groupware and workflow software. In either case, your newsletter software will alert you and them to the need to establish contact. In some cases, an accumulated history of contacts may facilitate mergers of firms across national borders and across disciplines, a trend which emerged in many major economies in the 1980s, but which still faces obstacles under Japanese law (Choy, 1998).

Your newsletter software would also encourage contact with academics. Compared to the lawyers of today, the legal information engineers of 2020 will operate at a greater level of abstraction, to synthesise and make accessible extensive legal information to those less interested in and capable of understanding the original information. This should create more in common with academics. However the collaboration with the latter might still be less directly relevant than the abovementioned categories of information engineers, targeting a range of individual and business clients rather than a broader audience consisting mainly of relatively young students, especially in Japan where legal education is an undergraduate programme.

Finally, your newsletter software might then alert you, and/or providers of your work (which may include publishers, accountancy or business management firms, or general telecommunications firms), of any particularly large-scale mutuality of interests in the new information. This might help identify new fields for legal information engineering projects.

All this would quickly fill your day. However, you might also set aside some time to train to become a specialist in refining particular deals or resolving particular disputes. Susskind suggests that such specialist advisors, more reactive and in that sense similar to most lawyers today, will still retain some role twenty-five years hence. If the amount at stake is large enough, people will still invest in a `second opinion' from them, even if legal information has been summarised, simplified and provided proactively by legal information engineers. Furthermore, gaps will inevitably arise even in the most sophisticated legal information systems. This results, for instance, from the need to express information in a natural language, containing indeterminacies. Also, systems developers will not be able to anticipate all contingencies in advance, and systems may appear to or actually provide some mutually contradictory suggestions. Finally, it may be arguable that specific suggestions or implications of a specific legal information system should be refined or even disregarded, because of some fundamental legal principle or purpose. Thus, part of the work of and training for specialist advisors will involve developing basic legal theory or philosophy, disciplines that still tend to be somewhat marginalised today compared to `black-letter law' subjects, in Japan as elsewhere.

More mundanely, based on the ways specialists are thought to derive their expertise today, Susskind predicts that training to be a specialist in the future may involve two paths. One may be to develop especially deep knowledge by practising underlying repetitive legal tasks, even though these will usually undertaken by advanced legal information systems. The other may be to work closely with senior specialists, learning by osmosis. As I mention below (Part IV.B), legal education will probably provide a third option in this respect by 2020. Anyway, in this argument, some have suggested that Susskind may remain too wedded to the distinction traditionally made in the UK between barristers and solicitors (Charlesworth, 1997). On the other hand, while the Courts and Legal Services Act 1990 is dismantling the barristers' monopoly on rights of audience in the higher courts, few appear to have taken advantage of this so far (Zander, 1997). This may be a temporary phenomenon, but New Zealand's experience - where lawyers can and usually do qualify as both barristers and solicitors, yet a distinct class of barristers specialising in court work still persists - suggests that there may be functional reasons for the distinction (Robertson, 1997). This then may survive foreseeable developments in IT. If Susskind is correct and there does remain a significant role for some such specialist advisors, therefore, various forms of training to become one also may take up some of your day.

Nonetheless, their role will probably be quite limited. The bulk of legal activity will contribute to proactive simplification and harmonisation, and hence dispute pre-emption rather than dispute resolution per se. Even when disputes emerge, and specialist advisors become involved, the dispute resolution forums will be more varied (see also Pettit, 1996); and even the most formal forums will be much more streamlined. An instance of the former is the emerging competition among already increasingly market-driven international arbitration centres to promote dispute resolution through the Internet. All the major ones have excellent websites. Rule 2.3 of the Singapore International Arbitration Center (<http://siac.tdb.gov.sg/rules.html>), for instance, allows written communications by any form of electronic communication. Well-known recent proposals to streamline formal litigation processes using IT are contained in the Woolf Report (Widdison, 1997: 158-62). Hence, the culture of adversarial legalism - said to characterise the US in particular (Galanter, 1992: 8-11, 20-2; Kagan, 1998), and variously feared and welcomed in Japan today - may continue to dwindle. And rather than as champions and icons of such a culture, specialists in dispute resolution in 2020 will earn respect through an ability to process information and argue issues persuasively at even more abstract levels, transcending particular legal information systems.

That, continues Susskind, will also characterise specialists in putting together deals or completely novel systems. Thus, judges will also tend to have had experience as such specialists, since a major role of a judge in 2020 (also much reduced) may be to resolve `supra-system' issues at a high level of abstraction, often involving fundamental moral and ethical issues. In a similar vein, at the recent New Zealand Law Librarians Group Conference, Justice Sian Elias argued that:

One of the challenges for lawyers is to resist the temptation look to the information elicited as sufficient in itself, to be mesmerised by it to the extent that we forget to read widely in order to learn what questions to ask. [...] Legal practice is creative. There are few certain answers. Those how outperform, who excel, ultimately require imagination, perhaps more than information. (Quoted in 493 Lawtalk 1 (2 March 1998).)

Judge David Harvey also warned against a shift in skills where `cut and paste' becomes a substitute for `analyse and evaluate' (id, p 3; see also his paper at the conference, `Electronic Information and the New Zealand Judiciary', <http://www.knowledge-basket.co.nz/nzllg/harvey.html>).

Thus, if you want to be a judge or adjudicator in 2020, you may indeed need to take seriously your training as one of the new incarnations of specialist dispute resolvers. In this respect too, however, Susskind may remain too wedded to the traditional English model of a solicitor gaining experience and eventually becoming an independent barrister, then gaining broad experience through being briefed by solicitors on many matters, thus preparing him or her for elevation to the bench. An alternative, which Japan has adopted, is the continental European model of a professional career judiciary, although recently Posner (1996: 21-36) has argued - rather unconvincingly - that English barristers are, at least partially, functional equivalents for judges (`judicial adjuncts'). In Japan, the separate career paths for bengoshi and judges seem likely to remain, although there are continued calls for bengoshi to be made judges (Endo, 1998). Partly these calls arise because judges are thought to reason too abstractly and lack practical experience. Ironically, in 25 years the former quality in fact may be greatly valued.

Even as an ordinary `legal information engineer', however, you may be involved in reviewing other legal information systems. Susskind argues that some systems will become more accepted than others, which may contribute to a new source of law, since fewer people will go behind them to examine and recognise the specific authority of underlying material such as legislation and caselaw. Most recently, the sale of West Publishing to the Thomson Group, combined with the sale of Shepard's caselaw citator to the LEXIS/NEXIS database, has broken the long-established authority of the National Reporter System (the basis for the WESTLAW database) and prompted a rapid expansion in (often annotated) caselaw service providers. More hypertext linkages also allow rapid movement between primary, secondary, and what have hitherto been seen as `extra-legal' sources (Berring, 1997). It certainly seems that new institutions will need to arise to determine the authority of such diversified sources. The Japanese legal system may have an advantage, in that it already goes well beyond the UK and perhaps even the US in deferring to academic theory, even if explicit citation thereto in the caselaw is exceedingly rare (c.f. Haley et al, 1994: 75). In Japan too, however, determining what systems (or what parts thereof) are more authoritative will probably require new forms of group-based evaluations.

Herein lies perhaps a new role for law societies. These will need to redefine themselves, as their traditional roles become circumscribed. For instance, committees on specific legal fields or problems, in Japan as elsewhere, have often served primarily as centres to collect raw legal information. But by 2020 this function will have become largely redundant. Law societies' disciplinary functions may also decline if - and this may be a big `if' for legal sociologists to consider (c.f. Heinz & Laumann, 1982) - the switch to proactive legal information engineering reduces the scope for lawyer misconduct. As implied above, their roles in monopolising aspects of legal practice will be challenged as barriers between law and other professions or industries continue to crumble. Indeed, the fall of those barriers combined with reduced and redefined functions will probably lead to mergers of law societies with other bodies. Thus, the last part of your day may involve much reduced contact with remarkably new types of associations.

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IV. Legal Academia in 2020

Legal education will be hugely affected by the emergence of the likes of legal information engineers. This will be so even in Japan, where law schools provide a more general undergraduate education and many go on to work in companies or in government, rather than as bengoshi or even lawyer-substitutes. The underlying technology also directly offers new possibilities and challenges for legal education. In this Part, including again some references to Japan, I review some developments already and speculate about potential further developments in four areas: entrance examinations, curriculum, teaching methods, and research and publishing.

I do not consider explicitly here the implications of IT for law school administration. These are so very significant already now, and for the immediate future, that they should already be obvious to readers. They also tend to devolve to narrower questions of efficiency gains, whereas this article aims to go beyond these. This means, however, that I also cannot discuss here the present circumstances and possible future transformations of universities as a whole. Let it suffice to say that this broader context is another very important variable in speculating both as to legal academia in 2020, and as to the future of the legal profession since it is linked to that future, while Japanese universities are already facing - and finally addressing, in part - major challenges resulting especially from an overall declining student population (Fujii, 1997).

A. Entrance Examinations

Consider first, then, how the academic year would get underway in a law school in 2020. Hopefully, a bane of legal academics everywhere, but particularly in Japan, will be much transformed. In Japan, nyushi (entrance examination) sessions are currently held on set days in February every year all over the country for thousands of nervous high school students. For them, admission to a reasonably ranked law school is the culmination of years of study and a passport to a much more enjoyable interlude, followed - even in the Japanese recession in recent years - by a reasonable likelihood of a good job. The timing tends to be rigid; in some universities there is no possibility of rescheduling exams even in the event of illness.

Moreover, remarkably, only academic staff can supervise all the sessions. Indeed, they must. Perhaps this arises out of a fear that even university administrative staff could be bribed, although why academic staff should be less susceptible to corruption is a mystery. The main reason may be some perverse egalitarianism: to remind academic staff, as in some other aspects of everyday Japanese university life, that although they may have the social cachet of being called sensei (teacher), they are not above the most mundane of administrative tasks. Of course, legal academics at universities throughout the country also spend the ensuing weeks tediously marking thousands of entrance exam scripts.

By 2020, technology may have developed so that students will not have to travel all over the country to sit exams at law schools they want to be admitted to, only on set days. Instead, for instance, each student applying by e-mail at his or her will during a set period (say, one week) could be sent software containing a series of exam questions. When opened, each student would be `locked in' to the software, having to answer questions sequentially within a set number of hours. The software would not allow questions to be copied or printed out, and there would be many versions containing differing sets of questions. These techniques would prevent cheating - and no doubt others can and will be devised (c.f. Blevias, 1998). Further, the questions could be hyper-linked to reference materials sent with the software and many answers evaluated by the computer programme, like the IOLIS `courseware' described in Part IV.C below. Your role as a legal academic then could be limited to marking answers to an essay-type question, for instance, as well as collaborating with colleagues to devise sets of exam questions. Neither the exam nor the assessment would need to take place at the university.

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B. Curriculum

What would you begin teaching the successful applicants when the new academic year begins? Clearly this will be partly related to what most of them will do after they graduate. If many will become legal information engineers, there may be a tendency to offer more specialised courses. Thus, in Japan, we may have more courses on `Sales Contract Law', rather than the `Law of Obligations' in general. On the other hand, university education may provide a rare opportunity to glimpse the broader picture, to get an overview of entire areas of law, such as `Private Law' or even broader fields of knowledge. Students will also need such instruction simply to decide what they are most interested in, and in any event legal information engineers in 2020 will probably have to learn `on the job' as law school graduates still do today. Further, as mentioned in Part III above, specialist advisors in fact may require more training in even broader fields, such as jurisprudence and legal sociology.

Some subjects taught today will be transformed more directly by the new technology than by the new legal `profession' that will emerge along with the technology. The study of legal history, for instance, will need to adapt to the rapid growth in digital storage. While allowing dramatic increases in the volume of material recorded, one difficulty may be that it will not be kept readily available. The average `life' of a web page, for instance, is currently only 70 days. This creates the universally exacerbating problem of `web rot', namely that links to further web pages or recorded URLs may no longer lead to that information (Bagnall, 1998). To address this problem, the Center for Global Communications associated with International University of Japan has initiated the `Historical Web Museum' project (<http://www.glocom.ac.jp/arc/hwa/index.html>), for instance. This project involves periodically saving onto their server all information available from important websites in the Asia-Pacific region, although these are only for government sites, which in fact may be more durable than other types of sites.

Assisted by developments like this project, as access to foreign and international law related materials becomes easier and more widespread, the importance of comparative and international law will surely grow. The variety of available materials also can allow a more interdisciplinary approach to these subjects, focusing not just on legal history and legal rules, but also on social and economic context - the law in action (Nottage, 1997a; 1998d). This approach can also extend more readily to incorporation of more comparisons with foreign and international law into other law courses. Until now, this has often tended to be limited to brief reference to specific rules in foreign law or international instruments. Partly this has been due to unavailability of more wide-ranging materials, but partly also the pressures of limited class time. The latter problem will also become much less significant by 2020, given the potential of courseware and other new teaching methods described below (Part IV.C).

What then will happen to courses on `Reading Foreign Legal Materials' (gaisho kodoku)? At Kyushu University Law Faculty and more recently at Seinan Gakuin University, for instance, I have taught such a course on Commonwealth Law, where I experiment with using only Internet materials. Gaisho kodoku courses, still taught today at law schools around Japan, no doubt originate in efforts particularly during the Meiji era (1868-1912) to establish a legal framework along Western lines. Key reference materials for developing legislation, and later legal theory to help make the statutory provisions work, were primarily in French and German. The influence of American law following the Occupation (1945-50) has since increased the importance of studying materials in English (Henderson, 1973: 164-72). While sometimes the study and borrowing of foreign law has been rather uncritical (Kitagawa, 1970), this has firmly established comparative law study in Japanese legal circles. The increasing availability of foreign legal materials will probably secure the future of gaisho kodoku courses in the Japanese law school's curriculum. However, the focus of study may increasingly be on materials in English, since the expansion of cyberspace so far has been overwhelmingly in English. As mentioned above (II.B), cyberspace is now growing rapidly in Japan too, bringing online much more material, including law related material (Baum & Nottage, 1998). But is hard to envision material in German or French catching up - or even keeping up - as a major lingua franca in cyberspace over the next two decades. The German authorities' reaction to child pornography and radicalism transmitted over the Internet, resulting in over 200 CompuServe news groups being closed down in recent years, further threatens the development of cyberspace there. Attempts by French elites to safeguard the French language may also prove counter-productive in a cyberspace era (Kaiser, 1997: 405-8).

Another subject with a promising future is, of course, intellectual property law. It did not really establish itself in Japanese law schools until the 1980s, but it is conceivable that during the next millennium - although probably not within two decades - it could come to vie in the curriculum with roppo (six Code) subjects: constitutional law, civil law, civil procedure, commercial law, criminal law, and criminal procedure. Further, within intellectual property law itself, cyberspace will create more issues and debate in some areas than in others: copyright rather than patent law, for instance.

Similar changing emphases will be found in other areas of law. In contract law, for instance, there will probably be a general trend away from the stress on contracts being written down or evidenced in writing. In many jurisdictions, this is evident both in statutory requirements often dating back to the dawn of the print era, and in judgments even today as to when parties intended to be legally bound (Nottage, 1998b). Developments in the IT era, such as Electronic Data Interchange (EDI), will force a reassessment of the proper role for formal requirements (Pejovic, 1998; Uchida, 1998a; see also MITI, 1997).

Existing views on the allocation of risks and responsibilities will be challenged by developments such as `vendor managed inventory' (VMI):

Before VMI, a buyer such as a retailer would analyze its sales, and based on its analysis place orders for new inventory. Under VMI, the responsibility for analyzing sales and for deciding when the buyer will receive new product shifts to the seller. The buyer sends raw sales data in electronic form to seller. Seller then makes judgments as to which products are more likely to sell in the future and decides which products to send (Benjamin Wright, quoted in Katsh, 1995: 121-2).

Further, as digital technology readily permits rapid expansion in the number of linked trading partners (see already e.g. Nihon Keizai Shimbun, 1998), the questions of who bears the risk (and when) will become even more complicated. The risk of lost or misdirected communications also may increase.

Traditionally minded contract law theorists may argue that such issues can be resolved within the conceptual framework of classical contract law, based on agreement centred on the expressed intentions of the parties. Thus, if a problem arises under an automated inventory management scheme, we can single out a wayward electronic transmission as an `offer' or `acceptance', and apply old rules (or invent new ones) as to who bears the risk of it going amiss. The difficulty with this is that it is increasingly difficult to do so, as computer systems maintained even by separate legal entities become more and more intricately linked, and the number of linked trading entities expands. Classical theorists instead may attempt to resolve the problem by focusing on the general agreement reached by the parties when they first developed or merged their computer systems. The law of mistake, applied to this stage, certainly may gain in importance compared to the law of offer and acceptance. But many issues will remain beyond its ambit, as gaps remain to be filled as trading proceeds, particularly if computer systems being to `learn' more as they interact with each other. Perhaps these systems can be thought of as `intelligent agents', delegated authority under the original agreement, and agency law reconceptualised accordingly (Uchida, 1998b). In turn, this will require us to rethink what we mean by legal capacity (Kitagawa, 1998).

Further, just as mass printing of contract forms led to problems as to how to give effect to `standard term contracts', new problems will arise in contract interpretation and control of unfair contract terms. In Japan, for instance, the ready availability of printed contract forms led to courts striking down some agreements recorded on such forms, particularly when one party had little knowledge of their contents or import (Ogino, 1996). How will they cope with parties who begin with that lack of knowledge but use increasingly sophisticated document assembly programmes allowing ready manipulation of individual clauses or other text in finalising a contract form, often providing checklists and other interactive features in doing so? How too will they cope even with purely oral agreements, when one or both parties are using software designed to assist in contract negotiations, such as `Negotiator Pro' (Katsh, 1995: 121-2)? Of potential importance with respect to all these questions is the proposal now pending for legislation in Japan to control both terms of, and bargaining leading up to, consumer contracts (EPA ed, 1998).

In addition to the areas of contract formation and interpretation, the growth of IT will probably lead to a much greater focus on the many areas relating to contract performance and changed circumstances. Like the process leading up to drawing up a final contract document, the latter may itself remain `interactive' for both parties and, indeed, affected third parties (Katsh, 1995: 127-30). Clauses on pricing, for instance, may be linked electronically to a range of economic and political indicators, with movements beyond certain parameters alerting parties and initiating various types of adjustment process. Some legal systems, like many US jurisdictions and to a lesser extent the Japanese legal system, will readily support such developments, both in giving legal effect to such agreed mechanisms and in facilitating an adjustment process (renegotiation, court adjustment, or perhaps even exemption from liability) if the clause or the contract as a whole was initially flawed or circumstances have changed radically. Others, like the New Zealand legal system still reliant on `formal' legal reasoning and the classical model of contract as a self-contained one-off deal, will find it much more difficult to deal with such developments (Nottage, 1997b; 1997c).

In addition, the sheer additional volume of transactions facilitated by the growth of IT and cyberspace will lead to new types of disputes. Civil procedure, culminating in litigation taken through to final judgment, may still be important. But the shape of the `dispute resolution pyramid' (Felstiner et al, 1980-1) will probably change. The lower stages of the pyramid probably become more important, but the expansion of cyberspace may also reinforce tendencies for the various stages to merge into each other (c.f. Wada, 1997). Thus, the broader study of civil dispute resolution processes will retain its importance. Legal sociology and legal anthropology also will become particularly important as we try to anticipate and move through the sorts of major change to the legal profession which are mooted here (Charlesworth, 1997).Changes like those just suggested for contract law and practice, and in disputing, will keep legal philosophers busy too (Uchida, 1998b).

Thus, whatever subjects you teach now, you should begin considering now what the future probably holds in terms both of their relative importance in the curriculum, and of the relative importance of particular areas within the subject. In any event, though, in 2020 you will probably be more involved in two general categories of instruction that may not necessarily be very familiar at present.

The first is continuing and/or professional education. Although in the early 1990s many Japanese law schools began to develop an impressive range of courses for shakaijin (those who had already once joined the workforce), this was not driven by any explicit vision - that I can perceive - of what sort of law-related jobs would be required 20 or 30 years hence. In the light of the foregoing analysis, continuing education likely will become important in five major categories.

First, while legal information engineers will probably tend to develop increasingly specialised knowledge of areas they work in, as mentioned in Part III above, they will also have more contact with other legal information engineers and may need a basic introduction to their fields to work meaningfully with them. While these legal information engineers may sometimes be able to provide this themselves, you and other legal academics will probably be better placed to do so in a general way. Secondly, those seeking to specialise further and become `specialist advisors' may undertake at least part of their training at your law school. Thirdly, newsletter software in 2020 will probably be able to identify the potential for new fields of law to be developed. Because of fewer demands to produce value-added legal information of immediately obvious relevance to existing clients, you or your colleagues in academia may be able to lead developments in such new fields, at least initially. On the other hand, newsletter software may provide advance warning that entire areas of law may become increasingly obsolete. In such cases, of course, law schools will also have an important role in retraining. Finally, as well as receiving continuing education in substantive law (or legal information) per se, legal information engineers will come to learn how to deliver or repackage legal information for a very broad audience, since legal academics will continue to concentrate more on this.

Related to this will probably be a greater involvement by law schools in professional legal education: practical training required before being admitted to the legal profession, whatever its precise contours by 2020. In Japan, the opportunity for this is already emerging following agreement in October 1997 to reduce the training period at the state-funded LTRI from two years to 18 months. This appears largely a cost-saving measure to offset increased throughput in this Institute particularly from next year, namely 1000 graduates; but it raises broader issues. Endo (1998), for instance, recently proposed a two-year probationary period following graduation. Remember also that one of the goals of the Foundation newly established by Nichibenren is continuing professional education (Part II.C above). At present, it is financed out of annual bengoshi practising fees, but this will not allow it to develop educational programmes of sufficient scale. It is also noteworthy that the Foundation involves legal academics (Koyama, 1998). Japanese law schools, particularly in private universities, can and will position themselves to take advantage of such restructuring of professional legal education.

As well as full-scale continuing education courses, such new roles will also probably mean more outside consultancy for you as a legal academic in 2020. Increased interaction between academics and practitioners, still comparatively uncommon in Japan, may become more two-way: not just legal academics preaching to practitioners or perhaps `poaching' ideas or insights without true mutual respect and learning (Savage & Watt, 1996: 55).

A second general category of instruction is likely to be practical skills training, also little stressed in Japanese law faculties even today (Yanagida, 1998; Levin, forthcoming). Particularly in the light of the still low accessibility of computers in schools (above, Part II.B), one aspect will be basic computer literacy. However, as software improves to the extent of allowing the emergence of a multitude of legal information engineers, no doubt it will become increasingly accessible and easy to use for law school students. Thus, `basic computer literacy' will probably just mean instructing students on the particular software developed to assist in teaching individual courses. Another set of practical skills which will probably require more instruction on your part are communication skills - basic skills in human interaction. As computer assisted learning becomes increasingly part of law school instruction, instruction in basic techniques of face-to-face interaction may be lost. While most legal information engineers may need this less than the lawyers of today, by relying on virtual networks of colleagues and so on, they will need these skills if they move back into law schools into professional training programmes or into other non-law related careers, or if they go on to become specialist advisors or even adjudicators. Brainstorming to develop new `supra-system' norms for dispute resolution, at least, will probably still be inconceivable in 2020 without some form of physical contact.

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C. Teaching Methods

Speculation as to the growing importance of both these general categories of instruction, though, is clearly related to more general questions of how you will teach in 2020. So far, these questions are only beginning to be adequately posed - let alone answered - by those who make higher educational policy in Japan, and the impact of IT is only rarely considered (c.f. Matsuura, 1997).

In 2020, lectures to large groups - the staple of Japanese legal education - will probably remain. But many may be conducted online, rather than in an actual lecture theatre. Further, the focus will likely be on providing very broad overviews of the subject-matter with a view to getting students started, at their own pace, on computer-assisted learning programmes. Most closely related to the basic philosophy behind lecturing, namely the imparting of large volumes of information in some reasonably coherent form, will be provision of an electronic textbook. One such textbook is already being used in conjunction with lectures on the law of contract at the University of Leeds (Wilson, 1996). In Japan, assisted by the structure of the Japanese Civil Code and the legacy of Continental European conceptual rigour, we now find textbooks that are readily adaptable to electronic versions (e.g. Kitagawa, 1993-5). Now that they are becoming available, experiments will follow in using them in conjunction with large-scale lecturing.

However, in recent years educational philosophy has placed increasing stress on interactive learning, involving two-way information flow between instructor and student (or, indeed, multi-way information flow involving communication between students). The tradition of seminars (zemi) in Japanese law schools provides some scope for this. However the pattern still often involves one or several students spending most of the time presenting the results of their individual research. This promotes another important skill, but it leaves little time for interaction in class. Thus, advances in computer-assisted learning in this area in recent years are particularly promising.

In the 1980s and early 1990s, in the UK at least, a first generation of `courseware' involved electronic tutorials which were largely limited to testing students' understanding in terms of correct answers to prepared multi-choice questions. Consequently there was minimal interaction and a tendency to reinforce rote learning. In 1992, however, the Law Courseware Consortium was established with a government grant to create second generation courseware, building on software developed by the Center for Computer Assisted Legal Instruction (CALI) in the US (CALI ed, 1996). A contract law team was the first to get underway (Scott & Widdison, 1997; Widdison, 1995a). The Consortium released the first edition of IOLIS in autumn 1996, with contributions from some 40 authors covering

contract, criminal law, European Law, Introduction to Law, Public Law, Property Law, Tort Law, and 'Law for Other Subjects' (including law for social workers and for business students). In its first year, 54 higher educational institutions in the UK subscribed to the courseware. There have been three later versions updating and adding much new material (Moodie, 1997; see also Law Courseware Consortium homepage, <http://www.law.warwick.ac.uk/html/lcc.html>).

The courseware includes:

• Workbooks containing sections of text followed by questions;
• A resource book, often hyper-linked to workbooks, and containing the full text of case reports, a small number of statutes (or extracts), and relatively few articles; and
• A `scrapbook' allowing students to `copy and paste' text from the workbooks and resource book to retain as their notes.

Questions are not just in multiple-choice format. Some ask students to rank statements; others allow a short free answer which is matched against the correct answer or various incorrect possibilities supplied by the author; and others require students to set out a response to certain tasks which can then be compared against an answer supplied by the author. There is also more emphasis placed on feedback, to encourage the student to think again or more deeply. Some authors even prompt students to consider the uncertainty of some areas of law by providing the same feedback whatever answer a student gives, indicating for example that there is scope for differing views on the matter. The courseware also allows lecturers (and students, if permitted) to add annotations to the workbook material, allowing them to integrate the courseware more satisfactorily with their own perspectives. No study appears to have been published yet on experiences of teachers and especially students in using this courseware. However many of its features help to meet criticisms of first generation courseware, particularly that it breeds a formalistic approach to law (Collins, 1997). Studies of other, perhaps more sophisticated, US courseware indicate that most students actually completed CALI exercises and found it helpful, often liked it, and performed somewhat better as they completed more exercises (Shapiro, 1996). As experiments also suggest in Australia, for instance (McGregor-Lowndes, 1995), the future of such courseware seems assured, at least when used in conjunction with other teaching methods. By 2020, you will probably be using it as an integral part of many courses. In Japanese law schools, this could mean in substitution for some proportion (say one-third) of zemi over the semester or year.

One of the limitations of the IOLIS courseware at present is that it is essentially a solitary exercise, although students can be encouraged to go through the questions in groups of two or three. A further interesting teaching method, which could be combined with courseware, is the `virtual tutorial'. This involves e-mail or electronic conferencing communication between tutors and students, and possibly among students themselves. A recent experiment at the University of Durham in the UK had students discuss by e-mail over one week a hypothetical contract law dispute in moot format: arguing first for one party, then the other, and finally giving judgment (Widdison & Pritchard, 1997). Students found the interaction to be helpful in developing their understanding of the subject matter and so on. However the process took somewhat longer than expected; discussion did not really get to the final stage. Also, a significant proportion of students apparently would have preferred to `get it over and done with' - perceiving the process as involving more work for them.

This could be an acute problem in Japan, where students tend to place even less priority on actual learning and the preparation this entails, although this holds less in the top tier law schools. On the other hand, particularly in Japan when students can feel shy about voicing opinions to the instructor or to other students, it may significantly enrich interaction (see also Widdison, 1995b). A related difficulty is that there is little tradition of mooting, or even debating, in Japanese law schools. This is changing, though, as they become more internationalised (Nottage & Sono, forthcoming). Thus, Japanese law schools have participated in the Jessup Moot (arguing issues of public international law) since 1979. For Vienna in early 2000, Kyushu University Law Faculty is preparing to field a team combining its Japanese and LL.M programme students at the Vis Arbitral Moot (arguing international contract and arbitration law issues: see <http://www.cisg.pace.edu/vis.html>). Experiments outside Japan in electronic mooting may provide encouragement and useful insights for zemi and perhaps even lectures in these fields.

Nonetheless, experiments with virtual tutorials which are not focused on a mooting format will be more immediately attractive. Some teachers have experimented with more sophisticated electronic conferencing software, as at the London School of Economics recently (Kelman, 1997). Most previous experiments with virtual tutorials have used such software, or simpler `exploder' software which distributes messages from students and instructors to all participants, to promote broadly based discussion similar to that which occurs in real seminar settings. More recently, Widdison & Schulte (1998) tried using two tutors to prepare students for a later face-to-face tutorial in a Contract Law course also involving large-scale lectures. One tutor adopted an `instructivist' style to quiz students on ten specific questions in multi-choice format. This tutor was able to provide more feedback than the IOLIS courseware is able to at present. But the second tutor adopted a discursive, `constructivist' teaching style in e-mail correspondence. This, combined with the face-to-face tutorial, was found by 55% of students to be more helpful than normal tutorials in other courses. For tutors, while time was saved in the instructivist mode, this tended to evaporate in the constructivist mode. But having such e-mail components produced significant savings in tutor effort: freeing them from geographical and temporal constraints, the generation of detailed records of student performance, etc.

This autumn, in my LL.M programme course on `Transnational Business Law: Joint Venturing in Japan' (<http://www.law.kyushu-u.ac.jp/~luke/tbl98_99.html>), I will experiment with getting specified students to prepare and circulate by e-mail discussion questions for classes; informing participants of new material for an `Information File' related to class topics, which we compile; and preparing questions to forward to law related organisations in Osaka which we visit at the end of the course. One of the aims, again, is to address problems of shyness among participants who come from a broad spectrum of countries (almost all are non-Japanese), especially with those who still have greater difficulty with oral comprehension and expression in a non-native language (the programme is taught in English, albeit with a focus on Japanese and transnational law). We can expect a rapid increase in such experiments over the next two decades.

As well as debating hypothetical disputes, answering quizzes, preparing questions, or gathering and distribution information using the Internet, your students in 2020 may practice negotiating and drawing up contracts using e-mail and FTP (allowing electronic transmission of documents). This will also permit interaction between students enrolled - but not necessarily physically located at - different law schools. Examples include the recent experiment involving hypothetical sales of land between students enrolled in professional training programmes in Bristol and Glamorgan (Calderwall, 1996), and contract negotiations by e-mail carried out in recent years between students at Aoyama Gakuin University in Tokyo and the University of California at Los Angeles.

By 2020, most law schools should be able to bring initiatives like these into a `cyberschool'. Harvard University (<http://cyber.harvard.edu/metaschool/index.html>) already offers a programme of interactive online courses on a range of topics including intellectual property law, privacy law, and property law. The University of Strathclyde in Glasgow also offers a LL.M Programme in Information Technology Law (<http://law-www-server.law.strath.ac.uk/Teaching/LLM/LLM.html>). Over the next few decades, we should see many more universities offering courses covering more `core' law (however that may be defined by 2020), not just those currently closest to IT issues. A recent example of this is the undergraduate course on law and society offered online jointly by the University of Maryland and Towson University (<http://www.bsos.umd.edu/gvpt/lawonline/>).

For all this, you will probably be using `webphone' facilities - microphones and speakers incorporated into computer hardware to send spoken messages across the Internet - together with video images of participants. The former facility already provides transmissions of quality almost matching standards telephone transmission quality, and at dramatically lower cost. Interactive video imaging has not made so much progress, but the growth of video technology already apparent on the Internet mean that this is probably not far away. Both features will make virtual tutorials, for instance, much more user-friendly and meaningful for student and instructor.

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D. Research, Conferences and Publishing

By 2020, a changed curriculum and more focus on continuing and professional legal education will mean changes in your areas of research and what you hope to achieve in that research. New methods of teaching will probably allow you more flexibility as to when you carry it out. Rather than doing so intensively over vacation periods when there are no classes scheduled (or entrance exams!), or during sabbaticals (and ryugaku, foreign research overseas, much more common in Japanese law schools today), you will probably have a larger number of shorter periods to turn to research. This could also mesh better with regular automatic searching and updating carried out by newsletter software for legal academics which may be similar, but not necessarily identical, to that used by legal information engineers.

You will spend much less research time amidst dusty stacks of books in overflowing law libraries. The emergence of cyberspace and electronic publishing already shows how information can beget information, and how one site can lead into many others. This transforms notions of physical distance which still constrict us today (Katsh, 1995: 69-79). Indeed, the `law' library per se, physically separate from the `main' library or libraries for other faculties, will probably be no more. This will be a major change for Japanese universities, in which a tradition of respecting `faculty autonomy' (see also Kumon, 1995) has tended to mean a plethora of separate faculty or institute libraries fiercely guarded by their own librarians, cataloguing systems, and so on. Visitors to German law schools may have had even more exasperating experiences, for there most full professors (or occasionally a consortium of a few of them) maintain separate collections which are even more difficult to access. Such gatekeeping will become increasingly meaningless over the coming decades, as digital technology develops. This should encourage more interdisciplinary study, and reduce outmoded notions of specialist `professionalism' premissed on controlling information (Katsh, 1995: 178-81; Arthurs, 1998).

As the volume of material available and linked electronically grows, however, the risk increases of people becoming `lost in cyberspace'. To prevent this, software to search effectively through this material will need to be developed, as Susskind and others expect by 2020. Law schools will also face difficult choices about when and how to replace print based media with electronic media, in terms of both relative cost and the risk of titles subsequently being deleted from electronic sources; whether to charge for some facilities, given that it will probably become technologically very difficult to restrict access but easier to control it; and whether basic print literacy is to remain a priority for law libraries (Buschmann, 1997). Law libraries are already being transformed by this (Berring, 1997), along with the myths sustaining or enveloping them (such as that of the heroic autodidact), which arguably also underpin certain substantive law doctrines (such as the fair use exception in copyright).

Another source of information for your research, conferences or other gatherings held domestically or abroad, also probably will be much transformed by 2020. Like virtual tutorials, `virtual conferences' have become increasingly common in the 1990s, using either normal e-mail software or more sophisticated techniques (Hardy, 1997; see also Lapointe & Miller, 1998). Providers of electronic journals and other organisations will specialise in collating and publishing the proceedings from such conferences, as advertised already on the Warwick University website (Electronic Publishing of Conference Proceedings, <http://elj.warwick.ac.uk/confpro/default.html>). Again, oral communication and interactive visual imaging facilities will probably make these even more attractive. This will substitute somewhat for one of the main benefits of physically attending conferences, getting a `feel' for a person that only physical proximity will bring, but you will probably develop new sensitivities in developing such a feel even at a distance.

Already, the development of the Internet is altering the nature of conference-going. As well as e-mail discussions before the conference (or an entire conference conducted virtually), early drafts can be uploaded for other participants to peruse (see e.g. the online version of Nottage & Wada, 1998). One major example here, as in Internet publishing generally (Hibbitts, 1996), is that work can be updated readily in response to comments, or one's own further thinking (see also Nottage, 1998c).

Such increased scope for interaction will probably result in considerably more opportunities emerging, and being taken, for co-authorship of the results of research. A major advantage is time saved. One of my co-authored works, for instance (Nottage & Wollschlaeger, 1996), was written in just a few days by exchanging drafts by e-mail. Admittedly, it was short and aimed not just at legal academics, and we benefited from differences in time zones between New Zealand and Germany, which allowed us to work around the clock! This example also reinforces my point above (Part IV.B) about the greater potential for comparative law scholarship in a cyberspace era.

True co-authorship - as opposed to collaboration in writing parts of a book published in joint names, etc. - is still exceedingly rare in legal academia in Japan, however. This may be partly related to the late development of Japanese language word processing software, allowing one co-author to more readily rewrite or add to the contribution of another. But co-authorship is also uncommon still in mainly English speaking countries like New Zealand. A more fundamental reason may be that in the US, the much higher frequency of co-authorship seems to be related to the orientation there of presenting one's ideas, often at the stage of work-in-progress, before ones peers at seminars and so on, and the related tendency to send around manuscripts at early stages for comments. This process provides feedback which may lead to opportunities to develop initial ideas or to come up with new ones, with others. It does not operate in Japan, because although there are many more opportunities for seminars and conferences to exchange ideas, these may often be divided along factional lines (e.g. Tokyo versus Kyoto University graduates); and, in meetings transcending such divisions, the `discussion' may still be quite restrained, as also with the process of responding to others' work when published (Rahn, 1990: 384).

The process we see in the US also does not operate in New Zealand or the UK. There may be more exchange of early manuscripts, but there are far fewer opportunities to organise and participate in seminars and other meetings to exchange ideas. This is more than a simple problem of inadequate funding for law schools, although admittedly funding is relatively easy to come by in Japan (as in the US) due to the many foundations, especially private ones, supporting collaborative research. If UK or New Zealand legal academia truly believed in the value of promoting interaction culminating in co-authorship, it could devote more resources to organising and sponsoring seminars and so on, than to library resources for instance. I suspect that this does not occur because it is another dimension of the strongly formal orientation of Anglo-New Zealand law and its institutions even today, and a distinct formal tendency in Japan, compared to the very substantive orientation of US law (Nottage, 1996; 1997e).

Yet the development of cyberspace, including the possibility of innovative forms of publishing on the Internet such as electronic law journals and even self-publication on one's own website (Hibbitts, 1996), can dramatically increase the potential for more and broader based interaction between legal academics, other legal information engineers, and `lay people' as well as all these `law people'. This is so even in Japan, where colleagues and I have inaugurated, on a limited scale, its first electronic law journal (see <http://www.law.kyushu-u.ac.jp/~luke/elawjournal.html>). By providing a new, potentially much more interactive medium, such initiatives may increase the scope for co-authorship, but also transform the `culture' of legal scholarship in Japan, and ultimately influence the future course of Japanese law itself.

This runs up against another aspect of the current culture of legal scholarship in Japan, however. Japanese law faculty staff can also demonstrate a very individualistic approach in other aspects of their academic life - far removed from the image (myth?) of groupism projected in some of the (older?) Japanese studies literature. The expansion of cyberspace, then, may bring legal academics within Japanese law schools into closer interaction than at present, as well as legal academics in different law schools.

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V. Inconclusion: The Futures of Law?

That last speculation raises very broad questions, however, which leads me to conclude on a note of inconclusion. For it identifies another key parameter in appraising the future path of the law in a cyberspace era: the impact of IT on communities. So far there has been very little empirical research on the impact of the Internet. Some long involved in developing it and its precursors suggest that it will create new communities of `netizens' (Hauben & Hauben, 1996). Kumon (1996) see them as more active than 20th century citizens, and part of a paradigm shift from industrialisation to informatisation. Other theorists like Rheingold (1995) are similarly optimistic about the potential of cyberspace to unleash new and deeper forms of human interaction, revitalising the public as well as the private sphere. Others, however, point to some evidence that it is encouraging people to become more and more introverted, or limited in their associations to those sharing similar narrow interests (Anderson & Gower, 1996).

We can draw here on feminist theory to further specify some potential areas of concern. Olsen (1998) identifies the following potential dark sides to communities: (i) some people may be forced into them, (ii) some may be marginalised, (iii) some may be more likely to be systematically excluded from powerful value-defining or resource-rich communities, and (iv) some may find themselves subordinated within communities. These are important dimensions generally, but Olsen's focus was on the way they have predominately affected women. It is worth pausing to consider how they may apply to women and the Internet, now and in the foreseeable future.

First, so far the Internet largely has not forced people into communities, women included, although research needs to be done to see if the large traffic in pornography on the Internet is bringing about pernicious forms of compulsion in new social clusters. Secondly, although some group-based Internet discussion groups or interactive websites may involve more women, so far it is hard to conceive them as being marginalised or looked down on. They may be completely ignored, but this is common also for other types of associations on the Internet at present. As search engines and Internet accessibility improve, however, marginalisation may become a more serious problem. Already more problematic is Olsen's third dimension, exclusion from the most important communities. Even if the rate of exclusion is not worse for women, more exclusion can result overall simply because of the much lower proportion of women using the Internet so far. This may have arisen because women have been disadvantaged in terms of training and access to computers, due to ingrained prejudices that they involve logic or maths and hence are more suited to men (Aldridge & Mumford, 1998: 129); expectations still that women in families are the primary care-takers, meaning that mean are often simply to busy to spend time with computers; or weaker earning power outside the home, and hence less disposable income to spend on computers and IT.

On the other hand, we should note that the proportion of women Internet users in the US has improved steadily, from 24% in 1995 to an estimated 42% in 1998 (eMarketer, 1998). This offers some hope that the even lower proportion of women users in Japan, estimated at only around 4% in 1995 (Aizu, 1995), may also develop rapidly. A more serious problem may remain, however, if women are under-represented in the many bodies now setting the ground-rules for future IT developments, such as the International Chamber of Commerce (see e.g. ICC, 1997), the EU (Monti, 1997), the OECD (OECD Secretariat, 1997), or the International Bar Association (Calkoen, 1998). Even if women do find their way into such communities, moreover, they may still be marginalised. They may be lumped with the more mundane tasks (as women academics have been lumped with administrative tasks in some countries: Albridge & Mumford 1998: 129). Or they may simply be outvoted.

These four dimensions of communities in a cyberspace era may also prove problematic for other groups. As a UNESCO official argued recently in Le Monde, we are hardly `ready for the 21st century' when 2 billion people are not connected to electrical grids and 4.5 billion do not have access to basic telecommunications; we have `information black holes' (infosoutes) as well as information superhighways (Binde, 1998). Thus, serious conceptualisations and empirical investigations of communities lead quickly into fundamental issues of politics more generally, often ignored by futurists enamoured of technological progress. As Keohane & Nye (1998: 81) point out:

Throughout the twentieth century, modernists have been proclaiming that technology would transform world politics. In 1910 Norman Angell declared that economic interdependence rendered wars irrational and looked forward to the day when they would become obsolete. Modernists in the 1970s saw telecommunications and jet travel as creating a global village, and believed that the territorial state, which has dominated world politics since the feudal age, was being eclipsed by non-territorial actors such as multinational corporations, transnational social movements, and international organisations. Likewise, prophets such as Peter Drucker, Alvin and Heidi Toffler, and Esther Dyson argue that today's information revolution is ending hierarchical bureaucracies and leading to a new electronic feudalism with overlapping communities and jurisdictions laying claim to multiple layers of citizens' identities and loyalties.

They argue astutely that:

The modernists of 1910 and the 1970s were right about the direction of change but simplistic about its consequences. Like pundits on the information revolution, they moved too directly from technology to political consequences without sufficiently considering the continuity of beliefs, the persistence of institutions, or the strategic options available to statesmen. They failed to understand how holders of power could wield that power to shape or distort patterns of interdependence that cut across national boundaries.

...

Prophets of a new cyberworld, like modernists before them, often overlook how much the new world overlaps and rests on the traditional world in which power depends on geographical based institutions. In 1998, 100 million people use the Internet. Even is this number reaches a billion in 2005, as some experts predict, a large proportion of the world's people will not participate. Moreover, globalisation is far from universal. Three quarters of the world's population does not own a telephone, much less a modem and computer. Rules will be necessary to govern cyberspace, not only protecting lawful users from criminals but also ensuring intellectual property rights. Rules require authority, whether in the form of public government or private or community governance. Classic issues of politics - who governs and on what terms - are as relevant to cyberspace as to the real world. (ibid: 82-3)

Others agree that nation-states will not wither away (Reisman, 1997), even if they have to transform themselves, for instance by more global interaction of component parts of the state such as the judiciary or government regulators: `transgovernmentalism' (Slaughter, 1997). Legal theorists from a range of perspectives also point to the continued future of both politics and law even in a globalised world (e.g. Teubner, 1997).

So far, cyberspace has developed largely from within, in a quite uncontrolled manner. `Cyber libertarians' have welcomed this (Rosen, 1997: part II), often drawing on arguments that cyberspace raises technological obstacles to regulation which are insurmountable to state regulators (e.g. Johnson & Post, 1996). But such arguments - ironically, since they generally begin by stressing the remarkable developments in technology - ignore the potential for state regulators to also develop new techniques of regulation, which do not need to be totally effective anyway (Lessig, 1996). And just as the state and politics will not go away, the law is also making its presence felt again in this new socio-economic space. Configurations and processes of communities, politics, international relations, and law are certainly like to change markedly over the next decades; but they will not be unrecognisable, or inevitable. We must beware of `evolutionary functionalism' (Gordon, 1985), with the juggernaut of social needs supplemented by the so-called imperatives of technological progress. As the media in Japan also insists, we must not be passive bystanders in the emergence of cyberspace (Editorial, 1998d). The development of the Internet already faces problems of congestion (OECD, 1997a: 141-61), and over the next two decades will face major challenges in operational, functional, and public infrastructure (Miller, undated OECD report). There creates the potential for a range of futures for cyberspace, the law, legal practice and legal education.

Standing back from such reservations and questions still to be explored, along with the many other sorts of variables mentioned earlier which are relevant to a final appraisal of the theses of Susskind and Katsh, the latter remain plausible, well-argued, and important. The more I read of developments in IT, legal practice and legal education, the more interesting they seem, even in a country like Japan. Law faculties with out-of-date buildings and other facilities should jump at the possibility of more teaching in cyberspace, and those that do not offer this training to their students will find them drawn away to other institutions - an increasingly worrying prospect given an ageing population and correspondingly declining student numbers (Asahi Shimbun, 1998e). The legal profession may be slower to change, but it will face pressures to do so from both within and outside. Further, many of the specific developments envisaged, such as new contracting practices and visions of the relationships involved, seem congruent with a number of theorists' views on what is normatively as well as empirically appropriate for legal systems now and in the foreseeable future. It may take more than one generation before these transformations become embedded, or even apparent, especially in Japan. Overall, the process no doubt will continue to be one of `displacement' or co-existence of existing practices and ideals, rather than `replacement' (Katsh, 1995: 13; Widdison, 1997: 151; Collins, 1997). What is clear, nonetheless, is that over the next few decades, jurists ignore at their peril - and that of the next generations of jurists - existing and potential developments in IT and, particularly, in cyberspace. Those who do will end up like those very early computers built with valves rather than digital technology: wheezy and redundant.

Top | Contents

BIBLIOGRAPHY

NB: To combat problems of `web rot', I have downloaded or printed out the important parts of this information, and this is available from me at <luke@law.kyushu-u.ac.jp>.

Abbey, R. M. (1995) 'Information Technology and the Legal Practice Course' [1995] 5 Web Journal of Current Legal Issues at <http://webjcli.ncl.ac.uk/articles5/abbey5.html>.

Abe, M. (1995) 'The Internal Control of a Bureaucratic Judiciary: The Case of Japan' 23 International Journal of the Sociology of Law 303.

Abel, R. (1988) The Legal Profession in England and Wales (Oxford: Blackwell).

Aizu, I. (1995) 'The Emergence of Netizens: The Cultural Impact of Network Evolution in Japan' [Autumn 1995] NIRA Review at <http://www.nira.go.jp/pube/review/95autumn/aizu.html>.

Aldridge, P. and A. Mumford (1998) 'Gazing into the Future through a VDU: Communications, Information Technology, and the Law' 25 Journal of Law and Society 116.

Anderson, B. and E. Gower (1996) 'When the Virtual Becomes the Real: A Talk with Benedict Anderson' [Spring 1996] NIRA Review at <http://www.nira.go.jp/pube/review/96spring/intervi.html>

Anderson, S. (1993) Welfare Policy and Politics in Japan: Beyond the Developmental State (New York: Paragon House).

Arthurs, H. (1998) 'The Knowledge Explosion: Power, Knowledge, Law and Libraries' (paper presented at the New Zealand Law Librarians' Group Conference on Challenges to Tradition - Law and the New Millennium, Auckland, February 10-13, 1998) at <http://www.knowledge-basket.co.nz/nzllg/arthurs.html>.

Asahi Shimbun (1998a) 'Joho Kokai Hoan mo Yato ga Kyodo Shusei [Opposition Parties Present Common Amendments to the Information Disclosure Bill, Too]', Asahi Shimbun 23 September 1998, p 1.

Asahi Shimbun (1998b) '`Shiru Kenri' de Kyogi ga Nanko ka? [Will Discussions Founder on the `Right to Know'?]' Asahi Shimbun 23 September 1998, p 2.

Asahi Shimbun (1998c) 'Sendaishi Gikai: Joho Kokai e Shin-Joreian [Sendai City Council: Bill for a New Ordinance on Information Disclosure]' Asahi Shimbun 12 September 1998, p 3.

Asahi Shimbun (1998d) 'Gyosei Joho Shijo Kakudai e [Towards the Expansion of the Market for Administrative Information]' Asahi Shimbun 28 March 1998, p 11.

Asahi Shimbun (1998e) 'Kokuritsu Daigaku no Nyugaku Teiin Rainendo 10-mannin ware: 9-nen buri [Numbers of New Students for National Universities To Drop Below 100,000 in 1999: First Time in Nine Years]' Asahi Shimbun 1 September, 1998, p 3.

Asaka, K. (1997) 'Electoral Reform in Japan: A Comparative Constitutional Law Perspective' 27 VUWLR 25.

AsiaPulse (1998a) 'Japan's Ricoh Moves into Online Document Storage Service' AsiaPulse 13 May 1998.

AsiaPulse (1998b) 'Asia Information Technology' AsiaPulse 13 May 1998.

Bagnall, R. (1998) 'Joseph Kizza's Ethical and Social Issues in the Information Age, Book Review' [1998] JILT at <http://elj.warwick.ac.uk/jilt/BookRev/98_1bagn/bagnall.html>.

Bennett, F. (1997) 'Igirisuho [English Law]' 500 Hogaku Semina 133.

Berring, R. (1997) 'Chaos, Cyberspace and Tradition: Legal Information Transmogrified' 12 (1) Berkeley Technology Law Journal at <http://www.law.berkeley.edu/journals/btlj/articles/12-1/berring.html>.

Binde, J. (1998) 'Prets pour le XXIe siecle? [Ready for the 21st Century?]' Le Monde 29 July 1998, p. 10.

Blevias, T. (1998) 'Xmr8r Examination Security Software [Review]' 47 Journal of Legal Education 449.

Buschmann, J. (1997) 'Notes on a Critical and Skeptical Overview of Electronic Publishing and Librarianship from the United States' [1997] JILT at <http://elj.warwick.ac.uk/jilt/elecpub/97_3busc/buschman.html>.

Calderwell, D. (1996) 'An Internet Exercise in Conveyancing Practice' 5 Web JCLI at <http://webjcli.ncl.ac.uk/1996/issue5/calder5.html>.

CALI (Center for Computer Assisted Education), ed. (1996) How to Write a CALI Lesson at <http://www.cali.org/iolis/toc.html>.

Calkoen, W. (1998) 'Harmonisation of Laws and the Internet' [April 1998] International Business Lawyer 146.

Callon, S. (1995) Divided Sun: MITI and the Breakdown of Japanese High-Tech Industrial Policy, 1975-1993 (Stanford: Stanford UP).

CBA (Cyber Business Association), Ed. (1997) Guidelines for Protecting Personal Information in Cyber Business (17 December, 1997) at <http://www.iijnet.or.jp/fmmc/501e.html#guideline>.

Charlesworth, A. (1997) 'Book Review: Richard Susskind, The Future of Law: Facing the Challenges of Information Technology' [1997] 3 Web JCLI at <http://webjcli.ncl.ac.uk/1997/issue3/charles3.html>.

Choy, J. (1998) 'Tokyo Loosens the Leash on Foreign Lawyers' 19 (1) JEI Report (Japan Economic Institute of America).

Church, I. (1997) 'Westminster on the Web: Parliament's Internet Service Takes Off, IT Review' [1997] JILT at <http://elj.warwick.ac.uk/jilt/sw/97_1hans/default.html>.

Collins, H. (1997) 'The Place of Computers in Legal Education' 3 LTJ at <http://www.law.warwick.ac.uk/html/3-3b.html>.

Dowell, J. (1998) 'Bytes and Pieces: Fragmented Copies, Licensing, and Fair Use in a Digital World' 86 (4) California Law Review 843.

Drucker, P. (1998) 'In Defense of Japanese Bureaucracy' 77 (5) Foreign Affairs 68.

Duck, K. (1996) 'Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedures Law on the Regulation of Industry and Market Governance' [1996] Fordham International Law Journal 1686.

Economist (1998a) 'After the PC' The Economist 12 September 1998, p 67.

Economist (1998b) 'Hold On, Japan's Busy' The Economist 12 September 1998, p 27.

Editorial (1998a) 'Kengen Kitei Nakushi Tomei Ni [Transparency and Getting Rid of Empoweing Provisions]' Asahi Shimbun 30 September 1998, p 5.

Editorial (1998b) 'Itsumade Mataseru no ka [How Long Will They Make Us Wait?]' Asahi Shimbun 18 October 1998, p 5.

Editorial (1998c) 'Horitsu no Chikara ni Tayoru Mae ni [Before Relying on the Force of the Law]' Asahi Shimbun 23 September 1998, p 5.

Editorial (1998d) 'Ukemi de wa Irarenai [We Cannot be Passive]', Asahi Shimbun 11 September 1998, p 5.

eMarketer (1998) eOverview Report (with extracts available via <http://www.e-land.com/estats/>).

Endo, N. (1998) 'Hoso Ichigen o Tomonau Kenshu Bengoshi Seido Sosetsu ni Mukete [Towards Establishing an Apprentice Lawyer System together with Unification of the Legal System]' 1129 Juristo 70.

EPA (Economic Planning Agency) (Ed) Interim Report by the Consumer Policy Committee of the Social Policy Council (Tokyo: January 1998) <http://www.epa.go.jp/98/c/19980121c-chukan-e.html>).

Felstiner, W. et al (1980-1) 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming' 14 Law & Society Review 631.

Foote, D. H. (1995) 'Resolution of Traffic Accident Disputes and Judicial Activism in Japan' 25 Law in Japan 19.

Foote, D. H. (1996) 'Judicial Creation of Norms in Japanese Labor Law: Activism in the Service of - Stability?' 43 (3) UCLA Law Review 635.

Fujii, K. (1997) Daigaku no `Zoge no To' no Kyozo to Jitsuzo [The Truth and Falacies of the University's Ivory Tower] (Tokyo: Maruzen).

Galanter, M. (1992) 'Law Abounding: Legalisation Around the North Atlantic' 55 Modern Law Review 1.

Gordon, R. (1985) 'Critical Legal Histories' 36 Stanford Law Review 57.

Gyosei Kaikaku Iinkai (Ed) (1997) Saishin Hokoku [Final Report] (Tokyo: Government Print).

Hahne, B. M. (1997) State of the Japanese Internet, 1997: Such Distance Travelled, So Far to Go (unpublished, February 20, 1997) at <http:ifrm.glocom.ac.jp/doc/hahne.html>

Haley, J. (1978) 'The Myth of the Reluctant Litigant' 4 Journal of Japanese Studies 359.

Haley, J. O. and D. F. Henderson (1994) Law and the Legal Process in Japan (Seattle: University of Washington Mimeograph).

Hamabe, Y. (1998) 'Intanetto to Homu [The Internet and Legal Affairs]' 642 NBL 3.

Hamano, R. (1993) 'Bengoshi ni yoru Kigyo Homu no Shori [Lawyers Dealing with Corporate Legal Affairs]' 532 NBL 35.

Hamano, R. (1998) 'Japanese Lawyers in Transition' 49 Rikkyo Hogaku 325.

Hammond, R. G. (1993) 'Electronic Technology: Law and the Legal Mind' 26 Cornell International Law Journal 2.

Harada, K. and J. Hayakashi (1998) 'Shogyo Toki Joho o Katsuyo shita hi Ninsho Seido no Seibi ni tsuite [On Organising a Digital Recognition System Making Use of Corporate Registry Information]' 1138 Juristo 6.

Hardy, T. (1997) 'Using the Internet for an Electronic Conference' 3 LTJ at <http://www.law.warwick.ac.uk/html/3-1e.html>.

Hauben, M. and R. Hauben (1997) Netizens: On the History and Impact of Usenet and the Internet (EEE Computer Society Press; available online via <http://www.columbia.edu/~hauben/netbook/>).

Heinz, J. and E. Laumann (1982) Chicago Lawyers (New York: Russell Sage Foundation).

Henderson, D. F. (1973) Foreign Enterprises in Japan: Laws and Policies (Tokyo: Kodansha).

Henderson, D. F. (1997) 'The Role of Lawyers in Japan' in H. Baum (Ed.) Japan: Economic Success and Legal System (Berlin/New York: de Gruyter) p 27.

Hibbitts, B. (1996) 'Last Writes? Re-Assessing the Law Review in the Age of Cyberspace' 1996 Akron Law Review at <http://www.uakron.edu/lawrev/hibb1.html>.

Hidaka, K. (1998) 'Jishu Kisei to EU Data Hogo Directive [Self Regulation and the EU Data Protection Directive]' 524 Hogaku Semina 131.

Ibusuki, M. and T. Yonemaru (1996) Horitsugaku no tame no Intanetto [Internet for Legal Studies] (Tokyo: Nihon Hyoronsha).

Jacobson, P. (1997) Net Law: How Lawyers Use the Internet (Sebatopol, Ca: Songline Studios Inc).

JapanMarkeTracker (1998) Internet and Multimedia Report, JapanMarkeTracker 25 August 25 (available through <http://www.internetjapan.com/apmi/jmt/>).

Johnson, D. and D. Post (1996) 'Law and Borders: The Rise of Law in Cyberspace' 48 Stanford Law Review 1367.

Jones, R. and J. Scully (1998) 'Effective Teaching and Learning of Law on the Web' [1998] 2 Web JCLI at <http://webjcli.ncl.ac.uk/1998/issue2/jones2.html>.

Kagan, R. (1998) 'Should Europe Worry about Adversarial Legalism?' 17 (2) Oxford Journal of Legal Studies 165.

Kaiser, J. (1997) 'Das Recht in Cyberspace: eine spontane Ordnung noch ohne Hierarchie [Law in Cyberspace: Spontaneous Order Still Without Hierarchy]' in H Haller et al (Eds.) Staat und Recht [State and the Law] (Vienna/New York: Springer) p 397.

Kanda, H. (1998) 'Iwayuru Denshi Shomei ni Kansuru Hosei Seibi ni Mukete [Towards Organising a Legal Framework for So-Called Digitial Signatures]' 1138 Juristo 11.

Katsh, M. E. (1989) The Electronic Media and the Transformation of Law (New York/Oxford: Oxford UP, with an introductory chapter at <http://www.umassp.edu/legal/em_intr1.html>).

Katsh, M. E. (1995) Law in a Digital World (New York/Oxford: Oxford UP, with an introductory chapter at <http://www.umassp.edu/legal/dw_intr1.html>).

Kawashima, T. (1963) 'Dispute Resolution in Contemporary Japan' in A. von Mehren (Ed.) Law in Japan: The Legal Order in a Changing Society (Harvard: Harvard University Press) p 41.

Kelman, A. (1997) 'Distance Learning at the LSE with Virtual Tutorials' [1997] JILT at <http://elj.warwick.ac.uk/jilt/sw/97_1lse/default.html>.

Keohane, R. and J. Nye (1998) 'Power and Interdependence in the Information Age' 77 (5) Foreign Affairs 81.

Kitagawa, T. and L. Nottage (forthcoming) 'Globalization of Japanese Corporations and the Development of Corporate Legal Departments: Problems and Prospects' (paper presented at the conference on legal professions at Harvard Law School, December, 1998).

Kitagawa, Z. (1970) 'Theory Reception: One Aspect of the Development of Japanese Civil Law Science' 4 Law in Japan 1.

Kitagawa, Z. (1993-5) Minpo Koyo [Lectures on the Civil Code] (6 volumes) (Tokyo: Yuhikaku).

Kitagawa, Z. (1998) 'Globalization of Law and Information Law: A Note' (paper presented at the conference on A Century of the Japanese Civil Code: Its History in International Context, Fukuoka, 2 October 1998).

Koederritzsch, L. (1996) 'Das neue Verwaltungsverfahrensgesetz in Japan - Versuch einer ersten Bilanz [The New Administrative Procedure Law in Japan: A First Attempt to Take Stock]' 2 ZJapanR 131.

Kojima, T. (1998) 'Hokokusho no Hyoka [An Evaluation of the Report]' 1137 Juristo 36.

Koyama, M. (1998) 'Homu Kenkyu Zaidan no Tanjo [The Birth of the Legal Affairs Research Foundation]' 1141 Juristo 2.

Kumon, S. (1995) 'Can Japan Succeed in 'Chigyo-ka' (Inteprise-Formation)?' 49 (2) Technological Forecasting and Social Change 147 (updated in 1998 at <http://www.glocom.ac.jp/lib/kumon/98/9803Inteprise.html>).

Kumon, S. (1996) The Internet and the Information Revolution (unpublished) at <http://www.glocom.ac.jp/lib/kumon/Toronto426.e.html>.

Kumon, S. and e. al (1998) Japan and International Society in the Age of Information Revolution, Kumon, S. et al (August, 1998).

Landers, P. (1998) 'Do As the Romans Do' Far Eastern Economic Review 23 July 1998 p19.

LaPointe, D. and D. Miller (1998) 'Legal Terminology on the Internet' Third Annual TCC Online Conference: Online Instruction - Trends and Issues, Kapi'olani Community College, University of Hawai'i, at <http://leahi.kcc.hawaii.edu/org/tcon98/pa12.html>.

Lessig, L. (1996) 'The Zones of Cyberspace' 48 Stanford Law Review 1403.

Levin, M. (1995a) 'Bureaucratic Sumo Wrestling' 4 Asian Law Journal 16.

Levin, M. (1998) (trans) 'Applicants and Acceptance Statistics for Japan's Legal Training and Research Institute: 1949-1998' 1132 Juristo 80 (at <http://www.tuj.ac.jp/law/ltristat.html>).

Levin, M. (1995) (trans) 'The Administrative Procedure Act' 1995 Law in Japan 141.

Levin, M. (forthcoming) 'Nihon ni okeru Jinken Ishiki no Kaika [The Blossoming of Japan's Human Rights Consciousness]' forthcoming Hokudai Hogaku.

Lowcay, Q. (1998) 'Year 2000 Issues' [1998] New Zealand Law Journal 237.

Mashima, R. (1996) 'The Turning Point for Japanese Software Companies: Can They Compete in the Prepackaged Software Market?' 11 (2) Berkeley Technology Law Journal at <http://www.law.berkeley.edu/journals/btlj/articles/11-1/mashima.html>.

Matsumoto, T. (1998) `The Development and Future Challenges of Self-Regulation in Japan, with Special Regard to Electronic Commerce' (unpublished paper presented at the 25th Aniversary Conference of the Advertising Standards Authority of New Zealand, Wellington, April 1998; at <http://www.law.kyushu-u.ac.jp/~luke/ecommerce.html>).

Matsuura, Y. (1997) 'Mondai Hakken-go no Tame ni - Komento Shiryo [For After Uncovering the Problem: Materials for Comment]' in Kokuritsu Kyudaigaku Hogakubu Shimpojiumu Jikko Iinkai (Ed.) 21 Seiki no Hogakubu [Law Faculties in the Twenty-First Century] 95.

McGregor-Lowndes, M. (1995) 'Practical Strategies for Using Computers in Legal Education' 2 Murdoch University E-Law Journal at <http://www.murdoch.edu.au/elaw/issues/v2n2/mcgregor.txt>.

McInerny, F. and S. White (1993) Beating Japan (Dutton, NY: Truman Talley Books).

Miller, R. (undated) the Internet in Twenty Years: Cyberspace, The Next Frontier? (unpublished OECD report) at <http://www.oecd.org/sge/au/highligh.htm>.

MITI (Ministry of International Trade and Industry) (1997) Electronic Documentation and Processing for International Trade: Verification Experiment Project Starts (18 November, 1997) at <http://www.miti.go.jp/report-e/g315001e.html>.

Miyazawa, S. (1994) 'Administrative Control of Japanese Judges' in P. Lewis (Ed.) Law and Technology in the Pacific Community (Boulder: Westview Press) p 63.

Moodie, P. (1997) 'Law Courseware and Iolis: Assessing the Present and Constructing the Future' [1997] JILT at <http://elj.warwick.ac.uk/jilt/cal/91_1mood/moodie.html>.

MPT (Ministry of Posts and Telecommunications) (Ed) (1997) Building the Next Generation Internet and Promotion of Cyber Business (Tokyo: MPT) at <http://www.mpt.go.jp/whatsnew/CyberBusiness.html>.

Murakami, J. (1998) 'Neue Medien und juristische Methodenlehre in zwei Rechtskulturen [New Media and Legal Reasoning in Two Legal Cultures]' in Z. Kitagawa et al (Eds.) Das Recht vor der Herausfordering eines neuen Jahrhunderts [Law Before the Challenge of a New Century] (Tuebingen: Mohr Siebeck) p 3.

Nasu, K. (1992) 'Bengoshishoku o Meguru Jiyu to Tosei [Freedoms and Regulations Regarding Lawyers]' in K. Miyakawa (Ed.) Henkaku no Naka no Bengoshi (Jo) [Lawyers Amidst Change (Volume 1)] (Tokyo: Yuhikaku) p 107.

Nihon Keizai Shimbun (1998) 'Netto-jo de Fukuzatsu na Torihiki - Dairinin Sofuto ni Omakase: Mitsubushi Denki to Toden ga Kaihatsu [Complicated Transactions on the Internet - Leave It to Intelligent Agent Software: Developed by Mitsubishi Electric and Tokyo Electric]' Nihon Keizai Shimbun 6 April 1998, p 19.

Nikkei Weekly (1997) 'More Corporations Focusing on In-house Legal Staffs' Nikkei Weekly 17 November 1997.

Nishigaki, T. (1998) 'Kanji Characters Going Global' 22 Japanese Book News (Japan Foundation) 7.

Noda, Y. (1987) Introduction to Japanese Law (Tokyo: Tokyo UP).

Nottage, L. (1993) 'Keeping Lawyers in Comparative and Social Science Perspective: The Issue of Foreign Lawyers in Japan' (paper presented at the Kobe International Seminar on The Role of Lawyers in Contemporary Societies, Kobe, August 9-11, 1993).

Nottage, L. (1996) 'Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the Law of Unfair Contracts' 26 Victoria University of Wellington Law Review 247.

Nottage, L. (1997a) 'Contract Law and Practice in Japan: An Antipodean Perspective' in H. Baum (Ed.) Japan: Economic Success and Legal System (New York/Berlin: de Gruyter) p 197.

Nottage, L. (1997b) 'Economic Dislocation in New Zealand and Japan: A Preliminary Empirical Study' 26 Victoria University of Wellington Law Review 59.

Nottage, L. (1997c) 'Planning and Renegotiating Long-Term Contracts in New Zealand and Japan: An Interim Report on an Empirical Research Project' [1997] New Zealand Law Review 482.

Nottage, L. (1997d) 'Contract Law and Practice in Japan: An Antipodean Perspective - Revisited' 31 Hikakuho Zasshi [Comparative Law Review of the Institute of Comparative Law in Japan] 55.

Nottage, L. (1997e) 'Japanese Contract Law, Theory and Practice: `Plus ca change, plus c'est la meme chose?'' in V. Taylor (Ed.) Asian Laws through Australian Eyes (Sydney: Law Book Company) p 316.

Nottage, L. (1998a) 'Bargaining in the Shadow of the Law and the Law in the Light of Bargaining: Contract Planning and Renegotiation in the US, New Zealand and Japan' in J. Feest and V. Gessner (Eds.) Changing Legal Cultures II: Interaction of Legal Cultures (Onati: Onati International Institute of Sociology of Law) (also, in abridged form, at <http://www.law.kyushu-u.ac.jp/~luke/onati.html>).

Nottage, L. (1998b) 'Submission to the New Zealand Law Commission on Repeal of the Contracts Enforcement Act 1956 (Preliminary Paper 30, December 1997)' (April, 1998) at <http://www.law.kyushu-u.ac.jp/~luke/lawcomm.html>.

Nottage, L. (1998c) 'Top Ten Changes and Continuities in Japanese Law and Sociey - 1997' in New Zealand Association for Comparative Law and T. Angelo (Eds.) Yearbook 3: 1997 (Wellington: NZACL) p 611 (also at <http://www.law.kyushu-u.ac.jp/~luke/topten.html>).

Nottage, L. (1998d) 'Cyberspace and the Future of Comparative Law' 1 (2) ICCLP Review 37 (also at <http://www.j.u-tokyo.ac.jp/~icclp/rv-issues.htm>).

Nottage, L. (1999a, forthcoming) 'New Zealand Law through the Internet: The Commonwealth Law Tradition and Socio-Legal Experimentation' forthcoming Kokusai Kaihatsu Kenkyu Forum (Nagoya University) special issue.

Nottage, L. and H. Baum (1998) Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Littleton, Colorado: Fred B Rothman & Co).

Nottage, L. and H. Sono (1999, forthcoming) 'Educating Transnational Commercial Lawyers for the 21st Century: Preparing for the Vis Arbitral Moot in 2000' forthcoming, 66 Hosei Kenkyu.

Nottage, L. and Y. Wada (1998) 'Japan's New Product Liability ADR Centers: Bureaucratic, Industry, or Consumer Informalism?' 6 ZJapanR 40 (with an earlier conference paper version at <http://www.law.kyushu-u.ac.jp/~luke/pladrfinal.html>).

Nottage, L. and C. Wollschlaeger (1996) 'What Do Courts Do?' [1996] New Zealand Law Journal 369.

OECD (Ed) (1997a) Information Technology Outlook 1997 (Paris: OECD) readable and downloadable in full text, as a PDF file, from <http://www.oecd.org/dsti/sti/it/prod/itblurb.htm>.

OECD (Ed) (1997b) Business-to-Consumer Electronic Commerce: Survey of Status and Issues (Paris: OECD) readable and downloadable as a PDF file from <http://www.oecd.org/dsti/sti/it/ec/prod/gd97219.htm>.

OECD (ed) (1997c) Communications Outlook (Paris: OECD) with extracts at <http://www.oecd.org/dsti/sti/it/prod/co-chrt.htm>.

Ogino, M. (1996) 'Iwayuru Reibun Kaishaku ni Tsuite [On So-called Boilerplate Interpretation]' in R. Nakagawa et al (Eds.) Nihon Minpogaku no Keisei to Kadai [Formation of, and Topics in, Japanese Civil Law Theory] (Tokyo: Yuhikaku) p 603.

Olsen, F. (1998) 'Equality Within Community: Illusions and Possibilities' (paper presented at the Annual Meeting of the Japanese Association of Sociology of Law, Nagoya University, 15-7 May 1998).

Pejovic, C. (1998) 'Legal Challenges to the Implementation of Electronic Data Interchange in International Trade' 65 Hosei Kenkyu F33.

Perritt, H. (1996) Law and the Information Superhighway (New York: Wiley Law Publishers).

Pettit, H. (1996) 'Electronic Dispute Resolution: An NCAIR Conference (Washington DC, 22 May, 1996)' at <http://www.law.vill.edu/ncair/disres/PERRITT.HTM>.

Posner, R. (1996) Law and Legal Theory in England and America (Oxford: Oxford UP).

Prais, V. (1998) 'Calculating the Cost of Justice' 1998 (January 23) New Law Journal 101.

Rahn, G. (1990) Rechtsdenken und Rechtsauffassung in Japan [Legal Thought and Conceptions of Law in Japan] (Munich: CH Beck).

Ramseyer, J. (1988) 'Reluctant Litigant Revisited: Rationality and Disputes in Japan' [1988] Journal of Japanese Studies 111.

Ramseyer, J. M. (forthcoming) 'Rethinking Administrative Guidance' in Gary Saxonhouse (Ed.) Finance, Development and Competition in Japan: Essays in Honor of Hugh Patrick (London: Oxford UP).

Ramseyer, J. M. and F. McCall Rosenbluth (1993) Japan's Political Marketplace (Cambridge, Mass.: Harvard UP).

Ramseyer, J. M. and M. Nakazato (1989) 'The Rational Litigant: Settlement Amounts and Verdict Rates in Japan' [1989] Journal of Legal Studies 262.

Reisman, M. (1997) 'Designing and Managing the Future of the State' 3 European Journal of International Law 409.

Repeta, L. and J. Chaffee (1998) 'Japanese Government Information: New Rules for Access - The Proposed Information Disclosure Law: Status and US FOIA Comparison (Japan Information Access Project Special Report, June 1998)' <http://www.nmjc.org/jiap/specrpts/joho.html>.

Rheingold, H. (1995) 'Computer-Mediated Communication and the Future of Democracy' [Autumn 1995] NIRA Review at <http://www.nira.go.jp/pube/review/95autumn/rheingol.html>.

Richardson, B. (1997) Japanese Democracy: Power, Coordination, and Performance (New Haven: Yale UP).

Robertson, B. (1997) 'Editorial' 1997 New Zealand Law Journal 145.

Rosen, D. (1997) 'Surfing the Sento' 12 (1) Berkeley Technology Law Journal at <http://www.law.berkeley.edu/journals/btlj/articles/12-1/rosen.html>.

Rowland, D. and E. MacDonald (1997) 'Information Technology Law' (London/Sydney: Cavendish).

Savage, N. and G. Watt (1996) 'A 'House of Intellect' for the Profession' in P. Birks (Ed.) Pressing Problems in the Law: What Are Law Schools For? (Oxford/New York: Oxford UP) p 45.

Schaede, U. (1996) 'Change and Continuity in Japanese Regulation' 1 ZJapanR 21.

Scott, C. and R. Widdison (1997) 'Law Courseware: The Next Generation' 3 LTJ at <http://www.law.warwick.ac.uk/publications/ltj/v3n2/ltj3-2b.html>.

Sekimoto, T. (1998). Key Issues for Developing the Information Society, Global Information Summit, Tokyo, 10 March 1998 (summarised at <http://www.nikkei.co.jp/summit/english/keynote.html>).

Shapiro, S. (1996) 'Lessons Learned: An Empirical Study of Student Use of Effectiveness of Teaching Materials in a Law School Evidence Class' 46 Journal of Legal Education 101.

Sibbitt, E. (1998) 'Law, Venture Capital, and Entrepreneurism in Japan: A Microeconomic Perspective on the Impact of Law on the Generation and Financing of Venture Businesses' 13 (1) Connecticut Journal of International Law 61.

Slaughter, M.-A. (1997) 'The Real New World Order' 76 Foreign Affairs 183.

Stoakes, C. and B. Hunt (1998) 'Creating Your Own Intranet' [June 1998] International Business Lawyer 264.

Susskind, R. (1996) The Future of Law: Facing the Challenges of Information Technology (Oxford: Clarendon).

Tanaka, S. (1998) 'Metamorphosis of the Legal System: Towards a Pluralistic Coordinating Forum' in Z. Kitagawa et al (Eds.) Das Recht vor der Herausfordering eines neuen Jahrhunderts [Law Before the Challenge of a New Century] (Tuebingen: Mohr Siebock) p 91.

Tanase, T. (1990) 'The Management of Disputes: Automobile Accident Compensation in Japan' 24 (3) Law and Society Review 651.

Taniguchi, Y. (1998) 'The 1996 Code of Civil Procedure of Japan: A Procedure for the Coming Century?' 45 American Journal of Comparative Law 767.

Teubner, G. (1997) '"Global Bukowina": Legal Pluralism in the World Society' in G. Teubner (Ed.) Global Law Without a State (Aldershot et al: Dartmouth) p 3.

Uchida, T. (1998a) 'Denshi Shotorihiki to Minpo [Electronic Commercial Transactions and the Civil Code]' in Shoji Homu Kenkyukai (Ed.) Saikenho Kaisei no Kadai to Hoko - Minpo Hyakunen o Keiki to shite [Issues and Directions in Reforming the Law of Obligations: On the Occasion of the Centennial of the Civil Code] (NBL Bessatsu No 51) (Tokyo: Shoji Homu Kenkyukai) p 269.

Uchida, T. (1998b) 'Saiba Kukan no `Keiyaku' [`Contract' in Cyberspace]' 212 UP 1.

Vick, D. (1998) 'The Internet and the First Amendment' 61 Modern Law Review 414.

Vogel, D. (1995) Trading Up: Consumer and Environmental Regulation in a Global Economy (Cambridge, Mass: Harvard UP).

Wada, Y. (1997) 'Merging Formality and Informality in Dispute Resolution' 27 Victoria University of Wellington Law Review 45.

Walker, G. (1998) 'Online Offering of Securities' [1998] New Zealand Law Journal 199.

Widdison, R. (1995a) 'Law Courseware: Big Bang or Damp Squib?' [1995] 4 Web JCLI at <http://webjcli.ncl.ac.uk/articles4/widdis4.html>.

Widdison, R. (1995b) 'Lawyering on the Internet' [1995] 1 Web JCLI at <http://webjcli.ncl.ac.uk/articles1/widdis1.html>.

Widdison, R. (1997) 'Electronic Legal Practice: An Exercise in Legal Futurology' 60 Modern Law Review 143, 147-50.

Widdison, R. and F. Pritchard (1997) 'An Experiment with Electronic Law Tutorials' 4 LTJ at <http://www.law.warwick.ac.uk/html/4-1b.html>.

Widdison, R. and R. Schulte (1998) 'Quarts into Pint Pots? Electronic Law Tutorials Revisited' [1998] 1 JILT at <http://elj.warwick.ac.uk/jilt/cal/98_1widd/>.

Wilson, G. (1996) PEL1: The Law of Contract at: <http://www.leeds.ac.uk/law/teaching/courses/PEL/mast.html>.

Yanagida, Y. (1998) 'Nihon no Atarashii Hoso Yosei Shisutemu [A New System of Legal Training in Japan]' 1127 Juristo 111.

Yanagida, Y. et al (1994) Law and Investment in Japan: Cases and Materials (Cambridge, Mass: Harvard UP).

Young, M. (1984) 'Judicial Review of Administrative Guidance: Governmentally Encouraged Consensual Dispute Resolution in Japan' 84 Columbia Law Review 924.

Zander, M. (1997) 'Rights of Audience in the Higher Courts in England and Wales since the 1990 Act: What Happened?' 4 (3) International Journal of the Legal Profession 167.