Very interesting post Anne. This actually reminds me of an Isaac Asimov short story that I read (or at least I think it was an Asimov story). Fittingly, I don't actually remember the name of the story or even anything about it other than the description of one character having the unique ability of knowing exactly what questions to ask machines in order to find the relevant materials. I, unlike this character, do not know the right words to search, which is why I was unable to find the story even after two hours of Googling. I did, however, find another Asimov short story, "Sucker Bait," with this revealing passage:

"'Computers are limited, captain. They have to be asked questions. What’s more the questions have to be the kind that can be put into a limited number of symbols. What’s more computers are very literal minded. They answer exactly what you ask and not what you have in mind. Sometimes it never occurs to anyone to ask just the right question or feed the computer just the right symbols, and when that happens the computer doesn’t volunteer information. 'What we need . . . what all mankind needs . . . is a computer that is nonmechanical; a computer with imagination. There’s one like that, captain.' The psychologist tapped his temple. 'In everyone, captain.'"

The problem with having an external storage device and not relying on your own memory is that an external storage device is free standing and requires purposive and conscious communication with it. The mode and language of that communication then becomes an added concern. Presumably (I don't know if this is right, so please correct me if I'm wrong) the way we access our memories is very adaptive and intensely personal. Although unconscious, we have a well understood way of communicating with our memories. With dependence on external storage devices, we must have a conscious understanding of the modes of communication with the storage device. With search engines, this often means having a conscious understanding of the most common ways certain ideas are phrased by other people. For example, right now I'm working on an appeal of a trial court's denial of a challenge to excuse a juror for cause. The cause cited isn't an express statutory provision, so it's not a question of whether the case falls into one well defined legal category or another. One side is claiming the juror was too biased based on what she said when questioned and the other side is saying that she wasn't. It's a very fact specific issue and the task becomes finding cases with similar facts. This is really hard to search for in Westlaw. A fact pattern is not something you can easily search for. What this boils down to is what one or two words do appellate judges most commonly use to describe a fact pattern like this. That word turned out to be "equivocal" - the juror was equivocal about whether she could be fair to both sides. The point is precisely what the Asimov character states - computers can only be asked a limited number of symbols and sometimes it never occurs to you what the right symbol is. The more we rely on external storage devices, the more we have to adjust ourselves to how they operate.

But unlike with our own minds, communication with external storage devices are one-sided. We type in searches until we get something we want, but the search engine (as far as I know) does not reflect on and adapt to our searches. Maybe Google does this now, but it's hard to think of a computer learning from people's searches and adjusting the results if people are unsatisfied and keep searching for the same thing. It would have to be a very sophisticated algorithm to be able to recognize this behavior well enough to adjust, let alone learn by itself without having to be manually readjusted every once in a while. Either way though, insofar as we depend on a shared external storage device, we have to develop a common mode of communication - communicating what is most commonly said will give us the best results.

I think all this conscious adjustment, learning how to best communicate with search engines, and predicting what the words most people would use is probably far less efficient than relying on our own memories that does all of these automatically and unconsciously.

Another related issue that this made me think of how this all relates to personal identity (at least metaphorically). John Locke famously proclaimed that personal identity is founded in consciousness, more specifically, “the same continued consciousness.” (See Chapter 27 “Of Identity and Diversity” http://etext.lib.virginia.edu/etcbin/toccer-new2?id=LocHuma.xml&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all). This basically boils down to memory because it is our memories that connect our conscious states over time. But if the persistence of memory is what defines personal identity, then what happens when our memories are more and more often stored in external machines? It seems that at least metaphorically, we become those machines. Locke’s main point of course is that identity isn’t founded in substance or body, but on consciousness, so we are not actually machines. But the more we depend on machines to house our memories, the more they and not our physical bodies are the immediate mediums of our existence. In that sense at least, we may actually become robots.

-- AlexWang - 28 Jun 2012

Are We Losing Our Minds? : Studying Memory

-- By AnneFox - 28 Apr 2012

The first emotion I remember feeling in life was fear. The aching sound of the piano strings as my mother’s fingers floated from chord to chord while I lazed on the sofa. That was the moment when I realized exactly what death meant—that someday when I drifted off to sleep, as I was at that instant, I would not wake. More than seventeen years later I still recoil when I hear Layla's piano coda.

Ask me to restate Justice O’Connor’s concurrence in Lawrence v. Texas and my description will not be so vivid, even though I just read over the case this afternoon. It’s easy for us to focus on not only fear, but emotions in general. We’re easily compelled by episodic memory (life events) as well, though much less so by semantic memory (general knowledge). I’ve found this issue of memory and recollection especially problematic in law school where I’m expected to jam my brain full of text every day for four months and then spew it all out in a three hour exam at term’s end. The problem appears to be twofold (at the least)—a combination of lack of focus and an over-reliance on technology, and the solution might just end up being easier than my Con Law exam.

Focus Versus Distraction

Psychologists assert that memory skill is not directly affected by how much information we pump into ourselves, but rather that “the more things we have to remember that are similar to other things, the harder it is to focus on a single item.” This is certainly true in law school where every case can be distilled into facts, issue and holding. The key, perhaps, is to focus not just on what the case says or how it compares to other cases, but how you can relate it to something else you know—something that you might find more emotionally interesting.

Many people not only find it hard to focus on specifics and commit them to memory, but even to focus at all. It’s all too easy to zone out while reading, and some psychologists have devoted their entire lives to the “wandering mind” theory, where the trick is to train oneself to practice focusing by adding information to the brain in “smaller bundles” and taking the time to meditate on the distracting thoughts separately. It sounds easy—if my anxiety about my daily budget shrinking from $11 to $6 dollars is drawing my mind away from a Regulatory Takings reading, then I should just stop and plan my budget instead of fake-reading twenty pages.

Unfortunately, in today’s world, interruptions don’t only come from one’s own mind or the people in the room, but from laptops and cell phones. Studies show that students who work on several tasks simultaneously (like checking Facebook, answering texts and studying) retain far less information and do poorly in their studies. Even without an email notification or a phone beep, many modern people still constantly think about their online presence or text conversations. While I think this is a huge identity problem in it’s own right, it also has a detrimental effect on learning. Being able to completely disconnect is a virtue in being able to concentrate.

The Google Effect

Another way that technology influences our recollection abilities is through what certain psychologists term the "Google Effect." I appreciate the Internet as much as the next twenty two year old—as much as the next academic in general. It offers an infinite wealth of information at my fingertips whenever I need and has truly revolutionized the world. Unfortunately, the Internet has also completely altered the way people process information. A group of psychologists, headed by Columbia’s Betsy Sparrow, compares the individual/Internet relationship with transactive memory (“a combination of memory stores held directly by individuals”). Basically, just as we’ve known how to garner information from parents, professors or co-workers, we now turn more often to search engines. We no longer store as much direct information on our own "hard drives" (our brains), but rather we replace it with indirect knowledge of where to find the facts on the computer.

This is unsettling. I am not a robot. I would like to be able to survive someday if I were lost in the woods without a computer or an iPhone. It seems easy to place the blame on technology for people’s “stupidity.” But alas, since I am not a robot and I am not in fact controlled by the Internet, I have to recognize that I command my own knowledge and my own memory—for the most part at least.

Why Does Our Memory Matter?

As students, we learn mostly by reading and attending lectures, so whatever our memories take away is the material from which we form knowledge about a particular subject. As lawyers, we’ll learn from researching and from sapping the transactive memory of our colleagues.

If the greatest strength of a lawyer is creativity, then the second greatest strength is recollection. The more raw material we have to work with, the more pieces-parts we have to build our arguments in our imaginations. And certainly we can find all kinds of information on Westlaw or Google, but we’re more likely to understand what we’ve already retained. Moreover, law is about more than doctrine—it’s about human behavior, so perhaps our minds, if focused, are more tailored to the task anyhow.

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PS I would like to continue to edit