The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age:
A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in the essential skills of “thinking like a lawyer.” The traditional techniques that have been taught by legal research and writing professors, and their doctrinal counterparts, must remain an essential part of our legal education system. Appellate jurisprudence in the Internet age is the same as it has always been. Whether one uses the Internet or a treatise to find legal information, the analytical skills necessary to determine relevant precedent remains the most important skill for a lawyer in the Internet age.
Whiteman notes that worries about how availability to ever-larger amounts of legal information might corrupt jurisprudence are nothing new: “The truth is that commentators have been worried about the explosion of legal information and the effects this has had on legal research and jurisprudence for close to two centuries,” (emphasis added, footnote omitted), noting that in 1821, Justice Story lamented that too many young lawyers were relying on treatises instead of actual legal opinions of the courts. Making a similar argument regarding today’s technology-driven growth in the availability of legal information merely continues a “time-honored tradition”:
Several commentators have criticized electronic research and its effects on the research abilities of law students, lawyers, and judges. While there is probably some truth in these criticisms, they reflect a continuation of the time-honored tradition of criticizing the research skills of law students and newly minted attorneys. The one constant that remains is that regardless of the tools used to perform legal research, law students must gain a deep foundation of “thinking like a lawyer.” Thinking like a lawyer encompasses the analytical skills that form the basis for “good” lawyering which will allow law students (and future lawyers) to uncover and utilize the basic building blocks of each jurisdiction’s jurisprudence.
I have not read the entire paper, but the conclusions stated in the abstract and the excerpt above match my intuition. As my prior writing on electronic briefs and laptops may indicate, I think too many people of all stripes, not just lawyers, expect technological tools to revolutionize substantive thought or to improve thinking rather than merely change the way we access, store, or review information. Technology allows us to find relevant information incredibly fast (and makes it tempting to ignore the age-old rule to always read the entire case before relying on it as authority). But once we access the information, we must still rely on our good sense and proven analytical methods.
Thanks to the Legal Writing Institute and the Social Science Research Network for making this paper available. Of course, if you’re still down on technology, you may instead regret that these organizations continue to contribute to what you see as a glut of legal writing! From me, however, they get a “thank you.”