Communication and Technology

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

OLD DRAFT