Law and Social Inquiry
Summer, 2002
27 Law & Soc. Inquiry 637

REVIEW ESSAY: Communications Revolutions and Legal Culture: An Elusive Relationship by Richard J. Ross

Ethan Katsh. The Electronic Media and the Transformation of Law. New York: Oxford University Press, 1989. Pp. 347.

Ethan Katsh. Law in a Digital World.New York, Oxford University Press, 1995. Pp. 294.*
 
* M. Ethan Katsh is professor of legal studies at the University of Massachusetts at Amherst and co-director of the Center for Information Technology and Dispute Resolution.
 
** David Skover is professor of law at Seattle University School of Law. Ronald Collins is a First Amendment scholar at the Freedom Forum's First Amendment Center in the Washington, D.C. area.

Ronald K. L. Collins and David M. Skover. Paratexts.Stanford Law Review 44 (1992):509-52.**


SUMMARY:
... What is the likely effect upon the law of electronic media - of the Internet and computerized storage and transfer of information? The answer to this question has taken a wide variety of forms in an outpouring of scholarship. ... Consider, by way of example, Katsh's claim that print solidified, and electronic media will threaten, the power, income, coherence, and "mystique" of the legal profession. ... They use high-level generalizations about the nature of electronic media (e.g., the Internet makes information exchange speedier, cheaper, and more flexible) in order to generate intermediate-level predictions about the legal culture of the future (e.g., recontextualization, corrosion of the profession's coherence and identity). ... By way of example, consider the McLuhanites' hypothesis that writing and print facilitated decontextualization in the law. ... To call pervasive writing and print an enabling cause rather than a background condition of decontextualization is not wrong. ... But a researcher trying to assess a hypothesis about the effect of a communications system upon a feature of legal culture should follow this technique with two of Mill's other inductive tools, used one after the other: first, the "method of concomitant variation" within a "most similar systems" design; and second, the "joint method of agreement and difference. ... Each country experienced growing use of electronic communication in the legal profession in the last two decades, albeit from different starting baselines. ...  

TEXT:
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What is the likely effect upon the law of electronic media - of the Internet and computerized storage and transfer of information? n1 The answer to this question has taken a wide variety of forms in an outpouring of scholarship. Most writers have discussed how the special properties of electronic media will invite improvement or will require adjustment in particular bodies of law, from intellectual property to sales, from antitrust to information  [*638]  crimes, and from the first amendment to civil procedure (Perritt 1996; Carrington 1998; Fisher 1998; Samuelson 1999; Volokh 1996). Others have explored not a field of law but cyberspace itself, considered as an entity or site. How, they asked, might the law best structure and regulate this new arena (Lessig 1999; Burk 1996; Hardy 1994; Developments 1999; Johnson and Post 1996)? Reform proposals have gone hand in hand with predictions about the likely future impact of the Internet and information technology. Most of this scholarship adopts a short-to medium-term perspective and speculates about how electronic media will alter the traditional work that legal institutions do: regulating speech, educating students, promulgating regulations and adjudicatory decisions, securing compliance to law among target audiences, and drafting documents and analyzing potential risks for clients (Susskind 1998; Hibbitts 1996; Lien 1998; Martin 1999; Perritt 1998; Volokh 1995a).

But a few authors have engaged in a more broad-reaching and ambitious form of prediction. They emphasize the fundamental importance of an age's dominant form of communications media in shaping not just particular doctrines and institutions, but the overall tenor of legal culture. How law is retained and disseminated powerfully shapes what lawyers think and do: their favored ways of reasoning, their style of resolving disputes and wielding power, their identity and social role, and their regnant values. These writers depict the historical evolution of law as a transition from an age of speech, to one of writing, then print, then electronics. "Law as we know it," M. Ethan Katsh has written, "would not be possible without the special properties of print" (Katsh 1989, p. 12). These properties, in the opinion of Ronald Collins and David Skover, "have influenced and still affect both the values and processes of law" (p. 515). Katsh, Ronald Collins, and David Skover, and others writing in this vein, argue that the coming age of electronic media will rework law as profoundly as the printing press once did. The profession's "whole framework for thinking about law and working through problems in a legalistic manner are challenged by media that store, process, and communicate information in digital form" (1995, p. 16).

Katsh and others believe that what makes their work possible is that this future legal culture is not discontinuous with the present but an extension of trends already underway. The implications of the computer and Internet are latent within them. Only dimly apparent now, the legal culture of the electronic age will become clearer as new media slowly, over decades or longer, reorient professional practices and habits of thought.

This review essay evaluates the content, intellectual antecedents, and strengths and weaknesses of this emerging body of scholarship and suggests future paths for development. In particular, it explores the effects on legal culture of printing, the previous communications "revolution," in order to gain a historical perspective. Section I of the essay lays out these scholars'  [*639]  predictions of how electronics will reorient legal culture and shows how they emerge from a particular theoretical tradition. These writers assume that computers and the Internet will have relatively direct, linear, powerful, and unmediated effects on legal thought and practice. New communications systems have foreseeable impacts because their effects are immanent within the technologies. These effects emerge as media are "interiorized" by the profession over time. This position echoes the "universalist" side in a debate simultaneously underway in the history of the book, communications studies, and the anthropology of literacy.

In all three of these subdisciplines, as observed in section II, the universalists have been losing ground to "contextualists." These critics stress the importance of political, economic, and cultural frameworks in shaping the effects of communications media. Their skepticism that foreseeable effects are immanent within technologies can be as profitable for studies of electronic communication of law as it has been for scholarship on print and literacy. The contextualist critique helps identify four specific shortcomings in predictive work on electronic communications and law. First, Katsh and his compatriots provide no way to disentangle communications from other causes of legal cultural change so as to assess the relative magnitudes of influence. Second, their interest in the interiorization of communications systems inclines them to unidirectional accounts of historical evolution. Third, they overlook the power of social context to contain (as well as direct or accelerate) effects supposedly immanent within technologies. Fourth, they assume that communications exert a pressure upon society that operates in a determinate direction.

Section III turns from critique to reconstruction. In particular, it argues that these analytic difficulties derive from insufficient attention to the complexities of "conjunctive" causation. The impact of a legal communications system depends on its interaction with variable sets of background conditions within narrowly defined local contexts. We need techniques for assessing under what conditions, and in what contexts, legal communications are significant (as opposed to trivial or spurious) causes of postulated effects. Unraveling conjunctive causation is a challenge not particular to the study of legal communications, but endemic in qualitative social science research. Section III advocates the use of comparative inductive techniques developed by qualitative social scientists. The main purpose of section III (as of sections I and II as well) is not to adjust the particular conclusions of Katsh and others writing in this vein. Rather, it tries to identify, critique, and improve their methodological commitments, their starting points for analysis.

The first generation of pioneering scholarship raised important questions about the impact of electronic legal communications upon legal culture.  [*640]  This review essay hopes to suggest ways of enriching the answers to those questions.

I. ELECTRONIC MEDIA'S TRANSFORMATION OF LEGAL CULTURE: PREDICTIONS AND THEORETICAL PEDIGREE
 
Katsh and Collins and Skover have been at the forefront of the exploration of electronic media's probable impact on the culture and organization of the law. n2 They tell a broadly similar story. Printing decisively influenced the common law's values and assumptions, effacing earlier scribal and oral legal cultures. But we live in an age of transition. Electronic media promises another reorientation in legal culture (Katsh 1989, pp. 3-12; Katsh 1995, pp. 7-13; Collins and Skover, pp. 509-10, 515). In support of this claim, they offer an array of intuitive suggestions and several extended case studies. I will concentrate on four of their case studies. These examine the effects of electronic storage and transmission of law on the doctrine of precedent, dispute resolution, the relative degree of "abstraction" in legal thought, and the coherence and identity of the profession. In the following paragraphs, I will lay out their argument in two of their case studies in order to demonstrate their style of reasoning. I will reserve the latter two for section II, where I turn from explication to critique.

Reliance on precedent is second nature to the legal profession. Following a distinguished body of historical scholarship, Katsh and Collins and Skover claim that the idea of precedent as "binding" grew up with print in early modern England. For precedent to have authority among lawyers, they argue, there must be a way of redacting the welter of facts and arguments voiced in past legal disputes into a limited corpus that allows for the extraction of rules. Identical versions of this record must then be disseminated among the profession. Printing helped fulfill these requirements. Writing required the distillation of the vast number of possibly relevant facts, claims,  [*641]  and rules available in oral tradition into bounded reports of cases. But writing was not enough. Since many lawyers produced manuscript reports of cases, these varied one from another; and they soaked up errors with each recopying. Only with printing could one standardized version of a case be distributed economically to a growing profession. Subsequent editions could correct mistakes. This provided a common corpus of texts for citation and elaboration, one that eventually replaced the notes and memories of judges and elderly eminences as the authoritative repository of law.

As precedent slowly became binding between the seventeenth and nineteenth centuries, this argument continues, it emerged as a vehicle for allowing measured change while preserving tradition. It mediated between revolution and stagnation. This had not been an issue in the largely "static" oral legal cultures, which had not used law for reformist policymaking. These societies struggled to prevent inherited rules from disappearing through porous memory. As the terrible burden of preservation through recitation eased, the legal system could turn its attention to self-conscious ameliorist work. Precedent's "stabilizing function" became necessary in this climate. Looking ahead, the new electronic media will undermine precedent's role as a regulator of the pace of change and will erode its authority. Westlaw, Lexis, and the Internet will flood lawyers with cases whose very number, disagreement, and rapidity of turnover corrode the "fiction" of a stable system of precedent. Moreover, they will facilitate research in nonlegal materials (politics, psychology, economics, philosophy, journalism), which were unavailable in law libraries. Rapid and convenient access to a wide variety of intellectual resources will shift attention away from judicial decisions. n3 The corrosion of the doctrine of precedent will have effects beyond its immediate context as the profession grows more accepting of change and less interested in the past (Katsh 1989, pp. 17-48, esp. 27; Katsh 1995, p. 89; Collins and Skover, pp. 533-34).

The transition from speech to writing to print shaped the law's preferred way of handling conflicts as well as the role of precedent, Katsh and Collins and Skover argue. Courts, arbitration, mediation, shaming, and gossip are complementary, often overlapping, methods of resolving disputes. Oral and scribal legal cultures subordinated the state's court system to these other methods. By contrast, print provided "structural support" to official tribunals applying formal law and thereby encouraged them. Print did this is  [*642]  a variety of mutually reinforcing ways. It undermined the authority of oral tradition so important to informal dispute resolution. It facilitated the collection of legal rules in treatises, which in turn motivated lawyers to look for organizing principles, for rules that could be systematized. Judges who concentrated on rules narrowed the criteria of legally "relevant" information. The social and moral context of disputes that had been so important to scribal and oral societies got pushed to the side if a rule could not comprehend it under one of its prongs or elements. As printed lawbooks highlighted rules, they tacitly reduced the status of custom, mores, and communities' local knowledge, the lifeblood of mediation, arbitration, shaming, and gossip.

Electronic media, the argument continues, will challenge the support that print has extended to rule-oriented dispute resolution in courts. Digitalized legal information will become malleable, easily reformatted, and flexibly distributed. Lawyers skilled in using electronic media will readily combine together classically "legal" information (cases, statutes, depositions) with "nonlegal" information, blurring the boundary between the two. In this environment, judges will come under pressure not to employ restrictive measures of relevance defined by rules to screen out nonlegal information. The tendency of rules to demarcate relevant from irrelevant context will seem arbitrary and problematic in a culture that values conjoining disparate information. Electronic legal cultures will gravitate toward alternative dispute resolution, with its commitment to considering a broad range of information about context. In addition, the drift from stable print toward mutable electronic knowledge will undermine the cultural valorization of law, and therefore of the court, as a means of resolving disputes. The "uniform and standard" appearance of printed law lent it an aura of stability and reliability. Impressive and stable presentation cultivated trust in the public mind. This will fade as electronic sources begin displacing books (Katsh 1989, pp. 49-110, esp. pp. 88 and 94; Collins and Skover, pp. 524-25).

* * * * * The questions that interest Katsh and Collins and Skover, and their way of arguing, emerged out of a particular theoretical tradition. After World War II, the cognitive and sociopolitical effects of media emerged as a central problem in the social sciences and humanities. Some of the story lines were familiar from centuries past, though now rendered with more subtlety. Literacy and print, it was said, were agents of modernization, nationalism, democracy, progress, individual liberty, social mobility, and rationality as against superstition and habit (Graff 1979, xiv-xvi; Graff 1987a, 2-3; Gouldner 1976, 39-42, 96-97). New ways of talking about media also appeared. Communications theorist Marshall McLuhan and economist Harold Innis isolated "media" as an object of study by distinguishing between the forms of communication and the content they happen to carry. This was  [*643]  one import of McLuhan's famous dictum, "The medium is the message." Just as one can look into the political and cultural effects of the railroad as a new technology, putting aside the variety of freight on board, so one can explore the impact of the printing press while knowing that it simultaneously disseminates the works of Jesuits and Marxists, free-marketeers and feminists (McLuhan 1994, 7-18).

McLuhan's and Innis's most striking insights came from looking beyond the manifest purposes of media - moving information - to their latent implications and unintended effects. The "'message' of any medium or technology," wrote McLuhan, "is the change of scale or pace or pattern that it introduces into human affairs." These effects "do not occur at the level of opinions or concepts, but alter sense ratios or patterns of perception steadily and without any resistance." According to McLuhan, media shape human "consciousness" itself by reworking attitudes, dispositions, and habits of mind. The transition from speech to writing as the dominant medium of communication, for example, provided a new model for the proper perception and organization of reality. Members of oral cultures continually synthesized multiple, overlapping streams of information from their eyes, ears, mouth, and touch. Immersion in writing taught people to organize knowledge into a series of discrete units (on the model of words), and to arrange these in linear sequences (on the model of the sentence). Writing encouraged the equation of logic with chains of inferences, where one proposition "followed" another. Sequence displaced simultaneity as the highest form of thought. The assumptions governing writing came to shape understandings of the ideal organization of knowledge in education, government, and science. Communications media not only transferred the content of thought; they transformed the process of thought (McLuhan 1994, 7-21, 84-85; McLuhan 1962, 40-42, 58-61, 77-79; Carey 1968, 1981).

McLuhan's fantasia of speculation along these lines animated a field of study even as most of his hypotheses encountered resistance (Rosenthal 1968; Kroker 1984). His questions lay behind the more disciplined inquiries of anthropologist Jack Goody, whose work has ultimately proved more valuable to students of legal media. Goody's great theme was how writing restructures oral societies, a problem he pursued comparatively with European, ancient Near Eastern, and West African evidence. A few propositions give the flavor of his style of analysis. Writing, Goody claimed, enhanced logical analysis by fixing information in place and allowing side by side, repeated scrutiny of statements for contradiction, incompleteness, and anomaly. Writing "decontextualizes" knowledge by removing it from face-to-face interaction. This gives knowledge a "generalizing push" toward elaboration and system building, the ironing out of local particularities, and the making explicit of the implicit and assumed. Intellectual innovations offered in oral societies disappear in a "process of social forgetting" if not  [*644]  deemed useful. By contrast, written knowledge persists through time. This prompts cumulative development of diverse intellectual traditions, which invites "a much more conscious, comparative and critical attitude to the accepted world picture." Finally, writing facilitates governance through bureaucracies (rather than lineage or charisma). It permits recruitment into office based on examination rather than status, and facilitates the listing of rules to direct state officers and separate official duties from personal desires (Goody and Watt 1968, 29-30, 44, 48-49, 62-63, 67-68; Goody 1977, 11-16, 37, 44, 46-47; Goody 1986, 129, 141-42, 165-67, 176).

The emergence of media as an object of study did more than provoke inquiry into how communications reshape consciousness. In the hands of Harold Innis, media regimes offered a new tool for periodizing history. Instead of deploying the familiar categories of empires, kingly reigns, and religious and economic systems, Innis organized history according to dominant modes of communications: the age of stone and clay, then papyrus, paper with writing, printed paper, and finally electronics. Each mode imparted what Innis termed a "bias" to social organization by favoring some institutions and interests over others. Durable media (such as clay and stone) excelled at preserving information over time. By fostering concern with history and tradition, they encouraged the entrenchment of religious hierarchies. They also limited empire building since governments could not readily move their chiseled commands over large spaces. Light media (such as papyrus and paper), being easily transported, encouraged wide trading networks and political expansion by states able to communicate with a dispersed officialdom. Portable papyrus, for instance, facilitated the growth of the Roman imperial bureaucracy. To the repertoire of tensions that historians use to organize narratives - individual and society, center and periphery - Innis could add another: media biased in favor of space versus those biased in favor of time. Behind the headlines of the rise and fall of states, Innis perceived the steady pressure exerted by communications on the balance of centripetal and centrifugal political forces, and on the coalescence and dissipation of monopolies of knowledge. n4

Treating history as a progression of media stages, from oral, to writing, print, and electronics, highlighted the effects of communications in each stage. Yet this form of narrative organization, which Innis, Goody,  [*645]  McLuhan, and the literary and religious historian Walter Ong favored, suggested a "technological determinism" that no number of sincere denials could shake off (Ong 1982, 175; 1981, 53-54; Goody 1986, xi, xv, 184; Innis 1972, 8). n5 For all their attention to the local political, economic, and cultural settings of communications systems, these scholars spent most of their energy asking how media impose a "logic" or "bias" on societies that operates in a similar way in different countries and historical eras. In this fashion, Innis studied the impact of the papyrus on both Egypt and Rome, and of paper on Renaissance Europe and China. Goody showed how the proliferation of writing bred a cadre of specialists in legal interpretation and advocacy in ancient Mesopotamia, classical Rome, and thirteenth-century England alike. "Medieval Europe relived," he noted, "many of the developments in bureaucratic government that had occurred in the Near East some 3,000 years earlier" (Goody 1986, 143, 165, 168, 185). If different societies moved through communications stages at distinct times and by various paths, the "logic" or "bias" of media pressed upon them in common ways (Goody 1986, xi, 185).

And so the foundation was laid for explorations of media's impact on the culture and organization of the law. Goody, Ong, Innis, and McLuhan provided Katsh and Collins and Skover not so much a set of portable hypotheses as an analytic and narrative structure. Katsh and Collins and Skover sketch four successive ideal-typical stages of law defined by forms of communication: oral law, written law, printed law, and electronic law. Later stages emerge out of and gradually supersede earlier ones (Collins and Skover, pp. 516-36; Katsh 1989). The impressive power of communications as an engine of legal cultural change justifies the use of successive media regimes as the key to law's development. Within each stage, communications powerfully (though not unilaterally) determine the processes, values, and habits of thought of the legal system.

Katsh and Collins and Skover are not, strictly speaking, hard technological determinists. They say that digital communications will bring unexpected consequences (Katsh 1995, p. 53). And they note that human decisions and economic and institutional settings modify the outcomes that technology enables. Collins and Skover provide an example. They imagine that appellate courts of the future presented with audio and visual recordings of trial evidence may react in one of two contradictory ways. Appellate courts may become more activist in reviewing factual determinations since the scrutiny of manner and gesture has become possible. Alternatively, the flood of time-consuming visual and auditory evidence may strengthen the "institutional efficiency rationales" for deferring to trial courts (pp. 548-50).

 [*646]  Yet this recognition that technology opens up multiple pathways comes largely in the form of qualifying asides. As Katsh and Collins and Skover map the road that digital communications will lay out for law, they seldom pause to mark branches and byways. The road commonly runs straight. The task of discovering branches is a qualification, even a diversion, to the main purpose of the book: developing a history and forecast of legal culture organized around the idea that dominant communicative media, consciously deployed for workaday purposes, are ever inadvertently reshaping legal thought and institutions. Indeed, even the recognition that technology may drive legal culture along one of several paths offers only a partial relaxation of determinism. Katsh and Collins and Skover escape from determinism in allowing for alternative outcomes while subscribing to it by making media the critical "agent of change," the motive force in legal evolution. n6 Their position evokes what Ithiel de Sola Pool terms "soft technological determinism": the belief that the properties of media "shape the structure of the battle, but not every outcome" (De Sola Pool 1983, 5, 251). Because Katsh and Collins and Skover make the continuous, subterranean pressure exerted by media the key actor in their analysis, they may be termed legal McLuhanites.

II. UNIVERSALISTS AND CONTEXTUALISTS
 
The legal McLuhanites' work has attracted much attention. Reviewers have appreciated its breadth and ambition and its originality in bringing to the study of legal media a set of questions seldom heard in the legal academy. They have taken issue with specific points in the McLuhanite account: sometimes with its history, more commonly with its predictions (Hibbitts 1992, esp. 88-82; Markell 1996; Pantaloni 1994; Samuelson 1996; Volokh 1995b; Williams 1989). I hope to achieve a more general critique by situating the legal McLuhanites in a debate that is cutting through the anthropology of literacy, communications studies, and the history of the book, the three literatures that provide their theoretical foundations. Doing so reveals that the particular shortcomings identified by reviewers are not isolated moments of errant analysis, but rather emerge from problematic methodological commitments.

With good instincts, the legal McLuhanites turned to the anthropology of literacy, communications studies, and the history of the book because these subdisciplines had pioneered ways of posing and answering questions about media's impact on social organization and cognition. All three of these bodies of scholarship are riven with competing approaches. A wing in  [*647]  each of them, the "universalists," displays a generalizing temper. It treats a communicative medium (whether writing, print, radio, or television) as, in Ruth Finnegan's words, "itself self-standing and independent of social shaping and as more or less inescapably determining social forms and relationships" (Finnegan 1988, 10). It isolates the medium as an independent variable that produces identifiable effects. Since these consequences recur across societies and time periods, they can be arrayed into stages of development. Thus Jack Goody: the proliferation of writing facilitates abstract thought, bureaucratic governance, and a cadre of legal specialists, whether in Mesopotamia, Rome, or medieval England. The legal McLuhanites' affinity for Goody, along with such thinkers as Ong, McLuhan, and Innis, aligned them with the universalists.

By contrast, another wing, the "contextualists," insists that the settings in which communicative technologies are deployed determine their effects more than a putative immanent logic. n7 Contextualists trade breadth for depth. Abandoning millennia-long sweeps through multiple cultures in search of general patterns, they focus on how ideas, power balances, institutional arrangements, and economic interests shape the implications of a media in a specific milieu. Much follows from this starting point. The effects of a medium prove difficult to extricate from the attributes and processes of the society in which it is embedded. Comparison of historical and anthropological evidence reveals the wide variety of uses to which writing and print have been put; and different uses produce different consequences. The universalists' transhistorical, independent variable "literacy" dissolves into culturally and temporally specific literacies. Likewise, "print" fractures into a series of changing and variegated print cultures. No two of these proves alike. For contextualists, the implications of media are multiple and potentially contradictory rather than singular, mediated rather than direct, of uncertain intensity rather than necessarily powerful, and limited and situation dependent rather than global. n8

Most legal scholars who consider the influence of computers and the Internet on law are implicitly contextualists. n9 The rapidly growing literature  [*648]  suggesting reforms in legal doctrine to accommodate the special challenges of electronic media presupposes that law is at least one of the forces shaping technological development and minimizing its harms. Why else devote so much energy to crafting the right regulations? Lawrence Lessig argues that neither cyberspace nor law has a "nature" that pushes development in a given direction. He emphasizes what is made rather than what is found - how the values and goals enacted through law, markets, norms, and computer code mold the Internet, which in turn shapes its users (Lessig 1999). The legal McLuhanites are unusual in their attachment to soft determinism.

It would be facile and inaccurate to say that Katsh and Collins and Skover fell into the "trap" of technological determinism by aligning themselves with the universalists. This criticism suggests that they have selected a wrong approach over a right one. Rather, universalist and contextualist positions facilitate different insights. The methodological commitments of universalism go hand in hand with the McLuhanites' ambitions. First, universalism provides a way to see over the horizon. To correlate communications regimes with immanent social and cognitive effects - for example, electronics threaten the boundaries between formerly segregated forms of knowledge - projects the effects of media into a future where economic, professional, social, and political settings remain necessarily unknown. Second, universalists adopt broader problem definitions and time parameters than do contextualists. A contextualist would be wary of defining legal evolutionary stages by media regimes and separating these by centuries. But this method underscores the influences of communications systems that otherwise remain invisible. Media exerts a protracted, insinuating pressure upon legal thought and organization. The conventional time horizons of contextualist legal history (10 to 100 years) might overlook the quarry. So too would studies of legal cultural evolution organized not around media regimes, but around the familiar categories of politics (wars, elections, changes in monarchical lines), or ideas (the Protestant Reformation, the Enlightenment), or economics (the growth of industry, the replacement of slave labor by free, the transportation revolution). Third, the contextualists' depth of analysis and attentiveness to multiple interacting causes of social change makes them congenital splitters, not lumpers. The universalists sacrifice precision for daring. So do the legal McLuhanites, who play for grand stakes by operating at high levels of generality - not the fate of a practice area but professional identity itself, not a line of doctrine but the very idea of precedent.

But the insights and energy that the legal McLuhanite approach generates come at a cost. Critics have taken them to task for overemphasizing the role of communications systems as independent variables and underplaying the "recursive and circular" relationship of media with the social factors that  [*649]  shape development and use (Pantaloni 1994). n10 Treating communications media as dependent variables invites us to ask why they took the form that they did at a given point in time, why their developers included or removed particular technological capabilities, and why their marketers oriented them to specific target audiences. n11 These are important questions. But one need not reverse the legal McLuhanites' angle of vision and regard media as dependent rather than independent variables in order to identify conceptual and evidentiary shortcomings in their work. The remainder of section II and section III will retain their focus on the impact of media upon legal culture - it will respect their statement of what needs studying - while suggesting ways of doing this better.

The contextualist critique of the universalists outside the field of law suggests four criticisms of the legal McLuhanites' approach. The McLuhanites problematically assume that, in the typical instance, communications systems: (1) are an important (as opposed to trivial) force shaping legal culture; (2) have their supposedly immanent effects interiorized (rather than blocked or ignored) by a legal system; (3) create unidirectional evolution; and (4) exert pressure on a legal culture in a determinate (as opposed to variable) direction. This critique will serve as the foundation for section III, which will suggest ways of placing their historical account and predictive agenda on firmer footing.

A. Magnitude of Influence
 
The legal McLuhanites' case studies identify features in legal culture encouraged by dominant media. They assume that communications systems play an important role in bringing about the feature under study. They do not treat importance of media as a variable that needs to be demonstrated on a case-by-case basis rather than presupposed. The pressure of media may be a strong or a weak cause and may be a cause that operates in all instances or only in conjunction with certain background conditions. The legal McLuhanites offer no means to disentangle communications from the numerous other causes of legal cultural change so as to assess the relative magnitudes of influence. They run the risk of overestimating the causal  [*650]  importance of media on legal culture and of misidentifying the processes by which it unleashes a pressure or bias.

The McLuhanites' explanation of the rise and fall of "abstraction" in the law, one of their extended case studies, demonstrates their susceptibility to exaggerating the significance of media. Print, they say, favored the "decontextualization" at the heart of modern (post-sixteenth-century) Anglo-American law. At first glance, this is a curious assertion. Common lawyers have long claimed that their attachment to precedent and analogy lends their reasoning a flexibility and sensitivity to facts wanting in civil law codes, and wanting still more in proposals to use law to advance philosophers' theories of justice or economists' prescriptions for efficiency (Levi 1949; Sunstein 1996). The last 75 years have seen the widespread acceptance of legal realist rule-and fact-skepticism, open-ended standards in legislation and adjudication, and special protection offered to racial, gender, and ethnic groups. In what sense, then, is the common law abstract and decontextualized? The legal McLuhanite verdict depends on changing what the common law is compared to. They use historical and ethnographic accounts of premodern law as a baseline; their contrast case is a tribal council of elders, not the modern French code. By that standard the common law is suffused with abstraction. Our law relies on a corpus of legal concepts (such as a corporation, a right, or an estate in land) not derived from sense perception and distinct from economic, moral, and political categories. It tries to screen out the unique qualities of litigants and their relationships in order to settle disputes under rules of general applicability.

Print supports decontextualization, the legal McLuhanites argue, in both direct and indirect ways. First, it reduced the proportion of mental energy devoted to simply preserving the law from generation to generation - all that recopying of decaying manuscripts, all those rhymes and mnemonics. When lawyers could compare legal categories side by side in texts instead of recalling them laboriously and perhaps inaccurately, the logic and tensions of the concepts appeared more clearly. They could refine concepts into more generalized and abstract statements. Second, at a more fundamental level, print reconditioned the mind. It furthered the work of writing by requiring jurists to take the overlapping perceptions and thoughts that swirl simultaneously in dialogue and fix them into a regimented series. Once "a culture uses such a medium for a few centuries, it begins to perceive the world in a one-thing-at-a-time, abstract, linear, fragmented, sequential way... . The form of print has become the form of thought" (Culkin 1968, as quoted in Katsh 1989, p. 258). Third, print indirectly fostered abstraction by supporting dispute resolution in courts bound by legal rules. Unlike the open-ended discussions before a tribal elder, adjudication according to rules excludes facts, justifications, and personal knowledge important to ordinary people. Courts reduce litigants' multilayered problems into questions inviting  [*651]  a binary answers (guilty or not, liability or not). By design, restrictive canons of relevance place to the side the "particularities of person, place, and time" essential in face-to-face speech.

Electronic communications, by contrast, promise "recontextualization." These media will welcome the background and context disfavored by law in the print age. Random access research in computerized databases will pull up sociology, politics, and psychology as easily as cases and treatises. No editor or librarian can filter out "legally irrelevant" knowledge. Perhaps more fundamental than this encouragement of the interdisciplinary tendencies already present in today's legal culture will be a broadening of the sensory and hence emotional range of the law. Digitalized images, music, poetry, drama, and speech will join with text in flexible and personalized information packages. The ability of electronic law to widen law's intellectual and affective repertoire will overwhelm print's bias for constraining information. "The detached logic and abstract analysis associated with print" will give way, in Collins and Skover's estimation, to the "contextual, concrete, and emotive." Law will move "closer to a gestalt jurisprudence ... driven more by equitable considerations than by formal rules." Electronic communications will undermine the "Gutenberg" values of predictability, uniformity, and universality (Collins and Skover, pp. 521-22, 536, 551; Katsh 1989, pp. 94-101, 247-65; Katsh 1995, pp. 158, 164-65).

Was print as important a cause of modern law's abstraction as the legal McLuhanites suppose? What is at stake here is more than the persuasiveness of their historical account. Their predictive project is also implicated. For if print was a critical reason for decontextualization, then the emergence of electronic media could well bring a measure of recontextualization. But if the pressure or bias of print was a minor cause, then its displacement could mean fairly little - at least for this quarry, recontextualization.

One could explain the rise of abstraction in modern law in a way that relegates print to the periphery. And one could do so by drawing on the same body of historical and social scientific learning favored by Katsh and Collins and Skover. By moving to the foreground what is in the background of their work, another tale of decontextualization appears. In a few criminally overgeneral paragraphs, here is a possible counterstory. The modern American legal system is highly differentiated - first, in its internal structure, and, second, in its functional and conceptual separation from economic, political, and religious institutions. It employs hundreds of types of full-time, specially trained professionals (from judges, to prosecutors, to trial attorneys, to eviction court mediators) who develop group cohesiveness and habits of thought that distinguish them from each other and from laymen. Using comparative and historical data from a variety of legal systems at different stages of development, Richard Abel has found that as the "structural differentiation" of dispute resolution institutions increases, "the logic,  [*652]  the aesthetic of behavior within the dispute process will become more autonomous, internally coherent, and independent of patterns in the larger society." Legal specialists within these institutions shift their interest from the outside world to the smooth operation of the institution itself and to the logical coherence of the rules it applies (Abel 1973, 217-347, esp. 264). Abel's research also suggests that as societies grow more socially, culturally, and economically heterogeneous - as America has over the last three centuries - they tend to develop "more abstract, more universal norms capable of reconciling the values of different segments of the population" (Abel 1973, 284, 288).

The thinning out of communal ties could be another reason for the growth of abstraction in the law. According to social historians, nearly every generation of American history has watched community break down. Community is our Rasputin. Withering at the turn of the eighteenth century under the pressure of population growth and commercialism, community revives in order to be torn asunder around the Revolution, then despoiled again successively by urbanization, industrialization, and the mass media before collapsing one last time in the cul-de-sacs of Levittown. Whatever the mysteries of timing and process here, there seems to have been a general drift from what the anthropologist Max Gluckman called "multiplex" relationships to single-stranded ones. Where people had once interacted over multiple dimensions (in the market, church, charitable organizations, civic celebrations, militia), they increasingly come to deal with each other in one way (as through a contract, or in an office). Societies dominated by multiplex linkages encourage judges to hear a wide range of information in the conviction that a lawsuit was a symptom of a breach in relationships that the judicial process should repair. As single-stranded ties multiply, judges come under pressure not to heal relationships, but to settle disputes quickly, cheaply, and above all predictably. They use restrictive pleading rules and narrow canons of evidence to define as irrelevant the social, political, and psychological background that once helped them understand relationships but now appears distracting and wasteful of scarce judicial time (Gluckman 1967, 18-22, 55; Mann 1987, 18-24, 163-69; Abel 1973, 264, 276-83).

Finally, there is Weber's celebrated process of "legal rationalization." The material and ideal interests of the legal profession, capitalists, and bureaucratic governance favored the abstraction at the heart of "logically formal rationality." The Rechtsstaat and its most characteristic product, the bureaucracy, legitimated their rule by obeying and guaranteeing formally rational law. Merchants and business interests favored "predictable" rules that facilitated planning and restrained arbitrary fees and expropriations by authorities. University legal educators championed "systematic" rules whose "relatively small degree of concreteness of content easily result in a far-  [*653]  reaching emancipation of legal thinking from the everyday needs of the public." The legal professoriat and the profession they tutored pressed for formally rational law not only to secure their livelihood as preferred interpreters but also to uphold their dignity as the creators of a logical and nonpartisan intellectual field. n12

The legal McLuhanites do not deny that these grand sociological processes - differentiation, specialization, and rationalization - help explain why the legal system of modern America seems decontextualized next to a premodern one. They nod to all this, but not too much. They must tell a historical story that makes plausible their prediction that electronic media will meaningfully recontextualize legal culture. They must show how our legal system's tendency towards decontextualization critically depends on print (rather than on institutions, politics, demographics, economics, or ideas). Otherwise, why assume that the advent of electronic media will have much of an impact on the degree of abstraction in the law?

But to put the grand sociological processes in the foreground awakens doubt about the relative importance of media-induced biases as against other forces decontextualizing the law. Why suppose that audiovisual recording, random access research, and digitalized, freely combinable images and information will materially recontextualize law against continuing, perhaps deepening, decontextualizing pressures? The legal system's institutional and role differentiation show no signs of abating. Neither does religious, ethnic, and value heterogeneity. Courts and bureaucracies continue their centuries-long, highly successful legitimation strategy of representing themselves as the product and protectors of impersonally applied rules, as exemplars of the rule of law. Corporations manifest no enthusiasm for Collins and Skover's "gestalt jurisprudence ... driven more by equitable considerations than by formal rules" in place of the predictable, uniform ordinances they typically favor (p. 551). The legal profession's legitimation of its privileges and dignity also rests on a certain measure of abstraction in the formulation of legal rules, and for more reasons than Weber pointed out. The legal academic project of systematizing legal rules and clarifying their foundations in regnant cultural values such as efficiency, dignity, or autonomy builds up the prestige of the profession in the eyes of the public, who too readily assume that such labors imply professional excellence in practical affairs (Abbott 1988, 8-9, 53-54).

 [*654]  If print nudged modern law toward abstraction, it had help from institutional, political, and cultural forces pressing in the same direction for four centuries. To tell a plausible story about how print furthered decontextualization, as the legal McLuhanites do, does not demonstrate the importance of print in bringing about this development. It may or may not have been as crucial as they suppose. We cannot know without a method sensitive to the magnitude, as well as the direction, of media's influence. The lack of such a method particularly calls into question the legal McLuhanites' predictions of recontextualization. Electronic media will need to work against the array of forces that had been print's ally.

B. Containment
 
Social, economic, and political forces retard as well as encourage or shape the uses of a technology and so prevent as well as foster particular effects. This is the negative power of social context - the ability to block or suppress the bias that McLuhanites see as immanent in communications media, awaiting interiorization. Here is a special application of the more general point that social context mediates the direction and magnitude of a communications system's impact. It deserves special emphasis because it is easy to forget that negation is a form of mediation, an extreme form that presents a serious challenge to the McLuhanite account. For what if the supposedly immanent "logic" of a media ever remains latent, never let loose upon a legal culture, or else is stunted or contained?

This may happen in several ways. First, and most extreme, a group may reject an advantageous technology altogether because of what Richard Bulliet calls "social filters," such as cultural prejudices, class tensions, lifestyle differences, or fear of losing control. n13 Second, a group may adopt a technology for only a fraction of its potential uses. They may treat it as a diversion and amusement instead of interiorizing it by integrating it into daily life and work routines. Third, a technology may be put to the use expected by the McLuhanite scholar - say, the printing press or Internet will disseminate law. But the technology may provoke resistance that will retard or disable the pressure supposedly immanent within the medium, awaiting release. This is the most common form of containment and offers the most trouble to the legal McLuhanites. n14

 [*655]  Consider, by way of example, Katsh's claim that print solidified, and electronic media will threaten, the power, income, coherence, and "mystique" of the legal profession. This forms another of his extended case studies. In the scribal legal culture of late medieval England, he suggests, most lawyers knew little beyond the procedures of a handful of courts. With the exception of a small group of elite practitioners associated with the Inns of Court, the majority of advocates attached little weight to the idea that they formed a unified profession in control of "some general universe called law." Printing, however, standardized books and distributed them wherever practitioners happened to live. Law as a separate domain of knowledge became visible and tangible in printed books, which lawyers collected and consulted in front of laymen. This created a predisposition to credit lawyers' claims to a corporate identity and to interpretive privilege. The growth of libraries devoted to law testified to the distinctiveness of legal craft from moral and philosophical knowledge and underscored the impression that lawyers mastered an inaccessible, but coherent, body of lore. All of this played on the psychology of the profession as well. As lawyers practicing all over the country began to read the same corpus of texts, they increasingly subscribed to a national group identity.

But where print bound the profession together and justified it in the eyes of laymen, the argument continues, electronic media will fracture and undermine the bar. First, digitalized law stored in computers and available over the Internet allows "random access" - entry from any point, and movement in between points without traversing what lies in between. Print's "linear access" forced lawyers to work through a common organizing scheme for professional knowledge (e.g., doctrinal divisions in treatises, or the West keynote system). The very process of looking up the law in printed books reinforced a shared template of knowledge. Electronic legal research will not put lawyers through this repeated process of intellectual socialization. Second, the new media facilitate access to nonlegal information (literature, journalism, sociology) and encourage its integration with conventionally legal information. The boundaries defining law as a distinct form of knowledge will become more porous. And then they will become harder to defend to skeptical laymen. Third, digitalized legal information does not reside in a physically separated space, like a law library. Where printed books provided a visible symbol of law's importance as a separate body of knowledge, electronics remove this form of legitimation. All three processes working together will confuse the definition of what special knowledge lawyers  [*656]  command and will cast doubt on what they are uniquely qualified to know. "The legal profession," Katsh writes, "needs clarity in terms of what law is in order to justify the exclusion of nonlawyers from the edifice of the law. If this domain is more difficult to describe in the future, there will be less justification for granting lawyers a monopoly" (1989, pp. 198-226, esp. pp. 203-7 and 223; 1995, pp. 68-73, 84-86, 180, 184-86).

A shortcoming in Katsh's predictions becomes clearer upon closer examination of his historical account. Is it certain that print legitimated and solidified the early modern English legal profession or even exercised a pressure in that direction? Thoughtful lawyers at the onset of the print age in the sixteenth and early seventeenth century considered just this question. While there were a variety of opinions, some came to just the opposite of Katsh's conclusion. Contemplating the effects of print upon the profession, they were drawn to themes prominent in Katsh's account of electronic law: the new medium of the press would fracture the profession and invite challenges to lawyers' income, prestige, and interpretive privilege. n15 To publish law, these skeptics believed, not only allowed laymen to consult books instead of lawyers. It also dissolved the mystique resting on popular association of the hidden with the profound. Making the law "common" through printing threatened to debase its dignity and by extension the honor of the guild that practiced it. Disdain for printing sounded throughout early modern Europe in the common maxim, "The pen is a virgin, the printing press a whore" (cited in Chartier 1989, 123).

The availability of published precedents and educational materials also encouraged individualistic, even "deviant," interpretation of law by beginning students and laymen. A. W. B. Simpson (1987) has likened the common law in the late Middle Ages to a caste custom pronounced by a select group of elderly men who ran the judiciary and the Inns of Court. It was self-validating in the sense that law inhered in these collective eminences rather than in the manuscripts that only incompletely captured guild tradition. n16 But as more law was published, the eminences' power to constrain unorthodox legal interpretation weakened. For that power had in part rested on their control of the raw material of law in an age before print: manuscripts and memories. The availability of printed lawbooks allowed laymen and novice lawyers to point to textual authority in opposition to senior lawyers' psychological pressure and presumptive command of guild tradition. In sum, at least some of the lawyers of 1600 thinking about the immanent  [*657]  pressure or bias of print feared for the coherence of the profession and the maintenance of its intellectual boundaries against outsiders - all of this being a foundation of authority, income, and prestige. They worried that print would do the profession in the seventeenth century what Katsh predicts electronic media will do to it in the twenty-first century.

Historians consider the period 1550-1640 a time of rapid growth in the numbers, range of skills, geographic and social penetration, and political and economic importance of barristers, attorneys, and solicitors alike (Prest 1986; Brooks 1986). Why did the dark and fearful prediction about the immanent logic of print not come to pass? Why did publishing not undermine professional identity and coherence and corrode control over the knowledge that gave lawyers power and justified their profitable social role?

In part, the answer lay in what was printed and how it was presented. Through the early seventeenth century, a considerable proportion of legal works appeared in French and Latin, which preserved their contents from uneducated eyes. English language texts also contained formidable barriers to popular accessibility. Some of the most common forms of legal literature, such as case reports and commentaries on writs, presented p