Communication and Technology

Individuals are, at least partly, a product of their environment. This environment isn’t static – time and place broadly change experience, and individual community and professional norms further specify an individual’s experience. These differences are impacted through technology – inventions that bridge communities such as the car or the Internet have had an expansive influence upon individual environments. This work argues that the expansion of technology necessarily changes the underlying understanding of how legal professionals approach legal problems.

Lawyers within communities

Holmes, in the Path of Law describes the study of law as the study of what we (we being legal professionals) do. Lawyers, like some Nietzsche-esque bird of prey are described by the act of doing, the verb without need of noun, the underlying action guided not by a moral mandate but by a communally driven system. Equally important, however, is the group described – legal professionals. The inclusive ‘we’ defines a community, which is narrowed not only by profession, but also by location and time. What ‘we’ as legal professionals ‘do’ is different from what ‘other’ legal professionals ‘do’. A lawyer’s thought process in Louisiana is different than a legal professional’s subconscious calculus in Rwanda. So long as every community is not the same, it thus follows that legal professionals in different communities understand law differently.

Language, thought, and causality

Traditionally, thought is placed at a beginning point, which in turn leads to communication, and from that, the transmission of one individual’s logic to another occurs. This idea of thought leading to communication was, for quite some time, assumed automatically. However, as argued best by Vygotsky, in Thought and Language, the causal connection is possibly the opposite – communication creates thought. Vygotsky argues that instead of thought creating the way communication occurs, communication impacts the way one thinks. This occurs at a subconscious level – the way one examines the world, and internalizes the external forces into a particular perception is done through an internalization of communication. This internalization of communication drives thought, so that the process by which one understands his surroundings is impacted by the way he utilizes language.

Technology and communication

Holmes and Vygotsky have significant ramifications for legal professionals. Legal decisions, made on the basis of what one ‘does’ rather than what one ‘says’, creates communication unconsciously internalized by legal professionals in particular communities. However, technology impacts communities. If the way ideas are transmitted itself influences how ideas are internalized, every legal professional in a certain community not only ‘thinks’ differently than that community at large, she ‘thinks’ differently then legal professionals in different communities.

Implications

What is the impact upon legal professionals in light of recent advances? Current expansions in communication (namely, the Internet) have led to increased communication between communities. A student in Indiana can read French court decisions. Lawyers in Rome can converse with counterparts in Tokyo. Legal institutions are expanding internationally at an increasing pace. These changes, if Vygotsky and Holmes are correct, necessarily impact how legal professionals think.

Scope of the Implications

There are instances of this theory playing out in reality. However, before turning to examples, it is important to qualify where this impact occurs. Because the change is not conscious in nature, the locus of effected thought isn’t found in the way a decision leans. Moreover, communication’s impact upon thought isn’t a theory of replacement, but of integration. As such, a country’s collective norms will not likely be exchanged. Just because the United States communicates at a greater extent with monarchies, for instance, does not mean the President is likely to install a throne. Rather, a change is likely to be found in a legal community’s agenda. What questions are asked, and how the answers are framed, is thus a better indicator of this theory than the ultimate decision.

Implications in Practice

Justice Kennedy’s reference to four European Court decisions in Lawrence v. Texas is perhaps the most identifiable instance of this theory. In citing these decisions Kennedy not only shifted the type, but also the means of the logic behind his opinion. This is not a lone example – Atkins v. Virginia, Grutter v. Bolinger, and Roper v. Simmons have all included international references. This rise in foreign references is a new phenomenon (or, at least, an increasingly common one). A rise is similarly established in an APSA study, which found that Internet citations have increased dramatically in recent years.

Court decisions are only one expression of this theory. Student textbooks now include international decisions – for instance, the United State’s stance on strict liability is complemented with Canada’s approach. Switzerland’s legalization of assisted suicide plays out in Constitutional Law classes. Death penalty law in other countries is discussed throughout America. Communication has increased alongside these changes. Although it would be a mistake to find causation in correlation, this theory provides an avenue of discussion for these changes.

Looking Forward

Empirical data is unfortunately sparse. No study has, for example, been conducted on the number of citations in current law textbooks in comparison to older textbooks. Some of the implications asserted should thus be read as best guesses. The theory is moreover confounded by a disconnect between what one says and does. Studies show an increased number of international courtroom citations, for instance, but it’s hard to measure what a judge reads. Looking forward, legal norms in a country that is dissimilar to the law in counterpart countries may be the best area to see this theory in practice. Taking the United States as an example, areas where legal thinking could be altered would thus be topics such as gun control, assisted suicide (although the U.K.’s stance diminishes this possibility), and the death penalty. Being out of step in these areas, increased communication could lead to changes in how these questions are examined.

Conclusion

Technological advances have changed the communication’s scope, and in doing so, have given rise to greater instances of communications between communities. This increase in exposure in turn effects subconscious thought, which provides an opportunity for an altered framework from which legal professionals act.

Sources used, and other interesting essays on this subject:

American Political Science Association - The Emergence of Internet Citations in Judicial Opinions: Examining the Supreme Court of the US and the US Courts of Appeals

Oliver Holmes - The Path of Law

Lev Vygotsky - Thought and Language

Austen Parrish - Storm in a Teacup: The U.S. Supreme Court's Use of Foreign Law

C.L. Ostberg - Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada

• I think this draft, like the last one, is hobbled by ahistorical reasoning. As I suggested last time, changes in communications technologies and patterns have happened before, and there's comparative history to use for context. But you're still taking a single sentence from Holmes and a highly tendentious philosophical argument that has little to recommend it given the natural science available, and out of that you're trying to deduce your predictions by the light of nature, given a couple of overblown illustrations. You're writing about secular processes here, so you need a long time scale and a very exact sense of proportion. Instances are small in long-term historical analysis, and intermediate changes in outlook (what the historians of the annales school called mentalités) are your subject. So some little bullshit partisan controversy about whether the Supreme Court justices should cite "foreign" law—a more or less exact equivalent of which, with respect to Justice Story's use of English law, could be found in the writings of Robert Rantoul 175 years ago— shouldn't be more than a throwaway, certainly not a pillar of the argument.

OLD DRAFT

Individuals are, at least in part, a product of their environment. This assertion is not meant to begin an argument in the realm of nature versus nurture, but rather to provide a relatively well-accepted foundational assumption to act as a beginning point. The referenced environment is in no way static – time and place change experience in a broad fashion, and individual family, community, and professional norms further specify an individual’s particular experience. These differences and movements are impacted in no small part through technological advances – inventions that bridge communities such as the car, the telephone, or the Internet have had an expansive influence upon individual environments. It is this impact that is at issue in this paper, with respect to one particular type of vocation – the legal professional. This essay examines the rapid expansion of technology and communication that have necessarily changed the framework and underlying understanding of how legal professionals approach legal problems.

Definitions

Before proceeding to the argument, it may be helpful to provide definitions for a few terms used. First, when the word ‘thought’ is used, the reference made is not only to a logical or philosophical system, but rather refers to mental processes but conscious and unconscious. Secondly, the term legal professional is not constricted to only those who have, through law school, become judges or lawyers. Rather, this term is meant to refer to any individual engaged in rule or regulation creation or discussion. Lastly, the term communication references all types of interaction, including written, spoken, and unspoken exchanges of ideas.

Lawyers within communities

Oliver Wendell Holmes, in the Path of Law describes the study of law as the study of what we (we being legal professionals) do. Lawyers then, like some Nietzsche-esque bird of prey are described by the act of doing, the verb without need of the noun, the underlying action guided not by a moral mandate but by a societal driven system of norms and guidelines. Equally important, however, is the group described – that is, legal professionals. The inclusive ‘we’ defines a community, which is narrowed not only be profession, but also by location and time. What ‘we’ as legal professionals ‘do’ is different from what ‘other’ legal professionals ‘do’. A lawyer’s underlying thought process in Louisiana is quite different than a legal professional’s mental and subconscious calculus in Rwanda. So long as every community is not the same (which seems to be a safe assumption), it thus follows that legal professionals in different communities understand law differently.

Language, thought, and causality

There is no true consensus as to how understanding (and from that, thought) operates. Traditionally, rational thought and logic were placed at a beginning point, which in turn led to communication, and from that, the transmission of one individual’s logic to another. Although several flaws can be found in this view, it is the assumed causality that is of particular importance here. Thought leading to communication was, for quite some time assumed automatically. However, as argued best by Lev Vygotsky, in Thought and Language, the true causal connection is quite possibly the opposite – that is, communication creates thought. Vygotsky argues then, that instead of thought creating the way communication occurs, communication impacts the way one thinks. This occurs at a subconscious level – the way one examines the world, and internalizes the external forces into a particular perception is done through an internalization of communication. This internalization of particular communications in turn drives thought, so that the process by which one understands his surroundings is impacted by the way he utilizes language.

Technology and communication

Taken together, the arguments made by Holmes and Vygotsky have significant ramifications for how legal professionals operate. Legal decisions, made on the basis of what one ‘does’ rather than what one ‘says’, creates communication understood and unconsciously internalized by legal professionals in that particular community. However, as mentioned previously, communities are impacted and expanded by technology. If the way ideas are transmitted itself influences how ideas are internalized, every particular legal professional in a certain community not only ‘thinks’ differently than that community at large, she ‘thinks’ differently then legal professionals in different communities.

Implications

What is the impact, then, upon legal professionals in light of recent technological advances? Current expansions in communication (namely, the barriers lowered by way of the Internet) have given rise to increased communication between communities. A law student in Indiana can find (with a bit of research) decisions passed down French courts. Law students in New York can converse with counterparts in Tokyo. Legal institutions are expanding internationally at an increasing pace. These changes, if Vygotsky and Holmes are correct, necessarily change how legal professionals think. This change is not conscious in nature – the locus of effected thought isn’t to be found through the logic exchanged. Whether or not the logic expressed in communication is accepted, denied, or outwardly disregarded is not at issue. Rather, it is the fact that such an exchange occurs – increased communication between communities is in itself a shifting force that necessarily alters the thought process by which law is understood and practiced.

Conclusion

It is important to distinguish between what this essay asserts and does not assert. It does not pretend to make a normative claim. Technology’s influence upon the legal profession is not judged to be ‘good’ or ‘bad’, but merely as an occurrence. This work likewise does not only assert that the legal profession is changing because of the Internet. This statement is rather plain enough in itself, and needs little explication. Rather, this work attempts to examine a way in which recent technological advances have influenced, and will continue to impact, the legal community. These advances have changed the scope of communication, and in doing so, have given rise to greater instances of communications between different communities. This increase in exposure in turn effects thought at a subconscious level, creating an altered framework from which legal professionals act.

Word Count: 980

• I find this draft a little puzzling. It seems like there's plenty of wind up but hardly any pitch. You've got theory and definitions and authorities and ... what? That increased communication among lawyers working in different systems will cause those lawyers to change how they think. But no description or explanation of the direction or velocity of change. No discussion of the change wrought in thinking by the increased intersystemic communication of lawyers over the last hundred years. Or, for that matter, thousand years. Or any distinction between what is happening at the boundaries of systems now and what used to happen at the boundaries of systems. Specifics are offered only to the extent that it is said that students may be exposed to materials from other systems, or communicate directly with students learning in other systems. More would have been necessary to explain in fact how changes in communication technology might change thought, as those were not previously unavailable experiences. But the more significant absence is of a broad enough generalization about significant enough phenomena to have justified all the introduction. Matter this narrow could be introduced without all the theoretical and definitional machinery, including of all things a definition of "thought," solely in order to say the equivalent of "travel is broadening" or "other people sure make one think." So I think the best way forward is make a list of implications of the communications changes that interest you, as well as a list of the mechanisms by which those implications were inferred from the technical and historical record. The patterns in those predictions and their substantiations contain the optimal architecture of the essay.

Definitions

Lawyers within communities

Language, thought, and causality

Technology and communication

Implications

Conclusion