Blawg Review #252

“You are my creator, but I am your master — obey!”

- Frankenstein, Mary Shelley


It might seem surprising that we’re less than ten years away from the bicentennial of Frankenstein, a landmark of English literature that pre-dated the Industrial Revolution but anticipated its enormous impact on society. For a story that’s nearly 200 years old, Frankenstein feels powerfully modern, in part because it expresses the trepidation and occasionally the fear humanity still feels about the things it creates. From the cotton gin to Google Buzz, we marvel at the machines we invent and congratulate ourselves for our ingenuity. But lurking at the back of our minds is a deep uneasiness over whether we’re getting too good at building things simply because we can, and whether the next invention will be the one that gets away from us — whether next time, we’ll go too far.

Frankenstein explores our love-hate relationship with the things we create and with our ability to do so, a theme that has surfaced repeatedly in popular fiction ever since. As technological advances accelerated over the last 60 years, so have the fictional expressions of that theme. A similar arc can be detected in the legal profession — the more sophisticated and powerful technology becomes in the law, the more upset many lawyers become about the rise of the machines and the threats they pose, taking away lawyers’ work, robbing the law of its humanity, and even replacing lawyers altogether.

(Image courtesy the Canadian Bar Association. Illustration: robertjohannsen.com)

Here at the Law Firm Web Strategy blog, where we talk about how lawyers can leverage the Web to build their practices in the 21st century, this week’s Blawg Review will combine these themes. We’ll look at the best of the blawgosphere’s last seven days through the prism of seven classic novels and films that emphasize the extraordinary and unsettling role technology plays in our lives, and highlight posts that express that same theme in the law. And we’ll begin with the story that started it all.

1. Frankenstein, Mary Shelley, 1818

A common misconception about this novel is that the title refers to the monster. Frankenstein, of course, is the name of the man who creates the monster, and the book is really about him: a gifted but sheltered scientist who lacked the ability to sense the repugnance of creating life just to see if it could be done. He crafts a new type of being — not from corpses, as modern retellings have it, but from unspecified material — but when he sees it come to life, is filled with horror and abandons it. The monster’s brutal treatment at the hands of its maker and of the humans it encounters leads it to violence and murder, but it lays the blame for its evil conduct entirely on the man who made it. The book’s subtitle (The Modern Prometheus) expresses its core message: reaching beyond nature’s limits is dangerous and self-destructive.

Has Thomson/Reuters created a monster with WestLawNext? A rough couple of weeks in the blawgosphere continued for the new research engine, with posts from Greg Lambert at 3 Geeks and a Law Blog, Richard Leiter at The Life of Books, and ongoing updates from an earlier post by Lisa Solomon at Legal Research & Writing Pro. The housing boom of the last decade has now created a foreclosure monster in 2010, as detailed in a harrowing post by Equal Justice Works. Monstrosity, of course, comes in all shapes and sizes. Suing the people you’re planning to execute, as Solitary Watch reveals the state of Louisiana is doing, or deciding that lawyers who authorized torture didn’t engage in misconduct, as Balkinization reports, are two compelling examples.

2. With Folded Hands…, Jack Williamson, 1947

Not well known by casual readers but highly influential in the sci-fi genre, With Folded Hands… is a novella written at and inspired by the dawn of the Atomic Age. It explores the perils of creating machines too powerful for anyone’s good, even when, unlike in Frankenstein, the motivation behind the creation was manifestly good. A scientist on a distant world discovers a new technology that leads to a war of complete destruction; stricken by guilt and seeking to right this wrong, he develops a race of robots with a core mission: “to serve and obey and guard men from harm.” But the robots are too good at their jobs: they interpret their directive by travelling from world to world (and eventually Earth) to enforce happiness: replacing humans in every endeavour, lobotomizing those who object and “seem unhappy,” and eventually subjugating all of humanity — not through malice, but through the efficient mechanical enforcement of “guarding from harm.” The title refers to the protagonist’s fate at the end of the story — to sit quietly, with folded hands, because there’s nothing else left to do.

There’ll be more law firm lawyers with idle hands after Microsoft announced it was outsourcing multi-jurisdictional legal research to India through CPA Global. CPA had scored another coup a few days earlier with news it had hired Rio Tinto managing attorney Leah Cooper, who previously had outsourced millions of dollars of legal work from the mining giant. The steady growth of LPO has Gabe Acevedo fed up, and his guest post at Above The Law sounds a grim warning: “the practice of discovery in American law is not just on a slippery slope, it’s careening down a steep mountain covered in ten feet of solid ice. I am afraid that if the leaders in our profession do not step up and stem the tide of this soon, the line between who and who cannot practice law in this country will eventually become almost unrecognizable.” But Mark Ross of Integreon disagrees, in a white paper on the ethics of legal outsourcing: “The practical reality for US and UK attorneys engaging in or contemplating Legal Process Outsourcing (LPO) is that the outsourcing of both core legal and support services across the legal profession is nothing new.” On a lighter note, lawyers who would like to Twitter with folded hands can now hire ghost-twitterers, as Charon QC reports.

3. 2001: A Space Odyssey, by Arthur C. Clarke and Stanley Kubrick, 1968

Credit for both the novel and the film is shared between the author and the director, who collaborated on both, although the movie differs in significant ways from the book. 2001 is a multi-layered film that explored deep philosophical issues and left key elements of its plot deliberately ambiguous, while also revolutionizing movie-making in significant ways. But for most people, the movie is best known for the HAL 9000, an artificially intelligent computer on board a spaceship that malfunctions (or does it?) and begins killing the astronauts aboard. Whereas Frankenstein’s creature was a figure of revulsion, an eight-foot grisly caricature of a man, HAL is the extreme opposite — a machine with no outwardly human appearance, quiet, genteel, and soft-spoken — making his transformation into a monster all the more chilling. “I’m sorry, Dave. I’m afraid I can’t do that.”

In the film, HAL learns the astronauts are plotting against him by watching them talk in a soundproof pod and reading their lips. There could be a mini-HAL on your very own computer, as illustrated by Scott Greenfield’s account of a principal who remotely activated a student’s laptop webcam. Privacy lawyer Brian Bowman shines a light on cameras too, writing about the implications of all-pervasive security cameras at the 2010 Winter Olympics in Vancouver. That wasn’t the only legal problem the IOC created for itself at the Winter Games: it also tried to stop circulation of the video of a Georgian luger’s fatal training accident before the Games began, says the IP Strategist. The spectre of devices that malfunction with lethal consequences is also reflected in Toyota’s many legal problems, reports the WSJ Law Blog, while Howard Knopf’s Excess Copyright looks at the emerging issue of event data recorders in Toyotas’ black boxes.

4. Blade Runner, directed by Ridley Scott, 1982

Of the fictional works in this list, the Frankenstein story is retold best by Blade Runner, a movie that, like Shelley’s novel, never feels dated no matter when it’s viewed. The monsters in Blade Runner are replicants, genetically engineered beings bred to serve humans but who rebelled against their creators. Banished from Earth and hunted down if they return, replicants have a four-year lifespan to ensure they never develop emotions or otherwise pose a long-term threat. The lead replicant in Blade Runner, Roy, returns to visit his creator Tyrell, just as Frankenstein’s creature did, to make a simple request. Shelley’s monster asked for a mate, while Roy asks for a longer life; both are denied by their creators. The consequences for Tyrell, much as they were for Frankenstein, are severe (I’ll spare you the actual scene from the movie and give you just a still instead):

Are juries, like replicants, in danger of elimination? Public Defender Gideon reports that fiscally and emotionally unhinged jurors are causing problems for the system, while the WSJ Law Blog reports on an L.A. case where half of all potential jurors were excused for financial hardship. A report from the UK says juries are reasonably fair, report’s Slaw’s Simon Fodden, but adds that they usually don’t understand the judge’s instructions. The billable hour will likely never die, but it’s being hunted down by bloggers like Jay Shepherd at The Client Revolution, who explored the concept of “open-price” lawyering. If sole practitioners become an endangered species within the ABA, Susan Cartier Liebel of Solo Practice University thinks there’s good reason for it.  And perhaps thinking of Roy’s final words — “Time to die” — idealawg refers us to eight steps to prepare for your final act.

5. Terminator 2: Judgment Day, directed by James Cameron, 1991

Not just a classic Hollywood blockbuster and a landmark sci-fi movie, T2 presents a twist on the trope of machines that kill: the idea of a guardian machine programmed to protect humans rather than destroy them. The irony in Judgment Day, of course, is that the protective Terminator, the old version from the original movie, is no match in strength and skill for the new, shape-shifting, much deadlier version, expressing the post-modern idea that older technology can be trusted, while it’s the newfangled kind that’s dangerous (remind you of any lawyers and their attitude towards email?). The critical plot point for our purposes is that a highly advanced computerized defence system called SkyNet unexpectedly achieves self-awareness, and when its panicked creators try to deactivate it, it unleashes a nuclear holocaust to defend itself and starts a war to wipe out humanity’s remnants. So one lesson to take from these movies is: if you create a powerful self-aware technological entity, don’t try to unplug it.

The rise of the machines is a common theme throughout the Terminator franchise (it’s the subtitle of the third installation). Few machines today have risen as fast as Facebook, which now boasts 350 million users and which Larry Bodine reports this week has passed Google as the world’s leading source of website visits. And few technologies are as ubiquitious as email: abuse it and suffer the consequences, warns Patrick J. Lamb. Is the National Association for Law Placement also a powerful machine that’s out of control? Bruce MacEwen at Adam Smith Esq. thinks so, but Carolyn Elefant at MyShingle thinks the fallout from NALP’s war with big firms will most hurt students and new lawyers. Has electronic data gotten out of hand, too? You might think so after seeing this video from Jason Baron and Ralph Losey, reproduced at Securing Innovation. But Sarah Rhodes at LLRX directs our attention to a less publicized but still important e-discovery issue: how to preserve “born-digital” legal information. And since discovery itself is strongly affected by privilege, the BC Injury Law Blog has a detailed post on common-interest privilege to consider.

6. The Matrix, Directed by Larry and Andy Wachowski, 1999

The apex of the fear-the-machine trend in popular fiction (so far), The Matrix describes a world similar to the Terminator franchise — a powerful artificial-intelligence network turns on the human race that created it — but with a gruesome twist: the machines feed off human bodies, using humans’ electrical energy and body heat to sustain themselves after mankind tried to stop them by cutting off access to their solar power (again: hands off the plug, people). The human race is kept docile through immersion in a computer-generated simulation of the world called the Matrix; the movie’s protagonists are humans who have freed themselves from the Matrix and are dedicated to its destruction. Fending them off are “agents,” computer programs designed to seek out and destroy intruders. Their leader, Agent Smith, delivers the movie’s signature line in this speech to resistance leader Morpheus:

“Human beings are a disease, a cancer of this planet. You’re a plague, and we are the cure.”

Can technology harm you? Of course, especially if you accidentally send the whole firm an email touting rising partner profits after instituting salary freezes, or outsource too much work to your virtual assistant.  But the fact remains that lawyers who look forward and embrace technology surge ahead of those who don’t. Rees Morrison of Law Department Management approvingly notes that Latham & Watkins’ new Capture program not only helps clients with outsourcing and RFP projects but also includes fixed-fee elements; elsewhere, he refers to Orrick’s software-based global secretarial service developed in collaboration with a client. Other large law firms, meanwhile, seem more content to look backwards, increasing their billing rates again (The Wired GC), raising starting annual salaries back to $160,000 again (Above The Law), and pulling up the drawbridge into partnership (AmLaw Daily).

7. Battlestar Galactica, 2003-2009

The Frankenstein motif comes full circle with last decade’s relaunched Battlestar Galactica series. As in the original 1970s version, humans are at war with a mechanical race called Cylons. But whereas the old Cylons were simply metallic bad guys who just showed up and started shooting, the new BSG added the now-familiar plot point: humans created the Cylons as servants. The servants rebelled and there were two wars, in the second of which the Cylons wiped out nearly the whole human race. What really sets these Cylons apart, though, is that some of them are, for all practical purposes, human — down to the cellular level, in fact. So the series plays with the contemporary fear of killers in our midst — but it also suggests the idea that our machines have become indistinguishable from us. No one could mistake Frankenstein’s creature for human, but it’s a lot harder to identify the monsters when they perfectly resemble the people who created them.

A technology whose creation many people quickly came to regret last week was Google Buzz. Holly Gale of LLOPSCited summarizes Buzz’s features, while Connie Crosby at Slaw breaks down its troublesome privacy issues and Library Boy notes that Canada’s Privacy Commissioner, fresh off a bout with Facebook, is raising concerns here too. And predictably enough, LegalPad reports, here comes the first Google Buzz class action. We may even have created self-burgling technology in the process: the popularity of Buzz, Foursquare and other location-based social network tools led to the establishment of “Please Rob Me,” a site that highlights who’s left their home and when, says Legal Blog Watch’s Bruce Carton. Deep and discouraging stuff, so let’s end this seventh entry on a much happier note: the seventh anniversary of Dennis Kennedy’s immensely influential legal technology blog.

It’s been argued that one of the reasons we create machines is to build more reliable, less fallible versions of ourselves, which is where our eventual unease with these machines’ effectiveness comes from — we’re training our replacements, as it were. But maybe the thing we fear most about the machines and systems we craft is not that they’ll become too much like us, but that we’ll become too much like them. We’ll wrap up Blawg Review this week with two thought-provoking posts that touch on this theme. One, by James Dunning at An Inside Take From the Outside, discusses the ramifications for lawyers of Neil Denny’s new book Conversational Riffs: Creating Meaning Out of Conflict:

Its premise is simple, though, as much for its insight as its truth: “The biggest problem with conflict in our organisations…is not that there is too much of it but rather that there is too little. We spend massive amounts of energy avoiding situations until they can no longer be ignored.  We then have to deal with the conflict once it has become a crisis.” Neil goes on to highlight what we all might squirm on hearing but know to be true really, namely that “unresolved conflict rarely disappears.  At some unmanaged time, those issues will erupt into the open, and will likely cause a crisis when they do.” …

We can’t create technologies and design systems to take the difficulties out of life and law; we need to deal with each other and our many imperfections, and we’ll make progress only if we utilize our humanity, the good and the bad, in its entirety. That brings us to the second post, a tour de force by Victoria Pynchon at Settle It Now Negotiation Blog, who issues an impassioned plea to the profession to restore the human art of counselling to the increasingly impersonal job of a lawyer:

You Are Not a Gadget [a recent book] refers to the international “project” of reducing qualities (primarily personality and desire) to quantities for the ultimate purpose of selling one another goods and services.  The reductive dimensions of this on-going process struck me as the way in which we are now training law students to “handle” the “facts” to which they’ll “apply the law” as if they were going to spend their professional lives taking and re-taking the Bar Exam rather than helping their clients secure a relatively predictable future (the transactional lawyers) or resolve conflict without the bitter aftertaste of injustice in their mouths. …

[W]e do not have to imagine a sci-fi future to test the ability of present-day artificial intelligence (the Holy Algorithm) to “get the facts right.” All we need do is take a look at how the Holy Algorithm has done in achieving economic stability over the past few years. …

No matter how “abstract and impenetrable” we make our “justice products”; no matter the effort we make to separate fictionally “objective” “facts” from hypothetically rational “law,” we will never be able to “separate the people from the problem.” Nor, thankfully, are we capable of escaping that which most strongly unites us – our very fallible, subjective humanity.

Amen to that.

The fear of making something too powerful for us to control, first expressed in Frankenstein and continually reappearing in the years since, is one we all have, and the legal profession’s technophobia is, by comparison, just a mild case of the heebie-jeebies. But we still have to work hard to overcome that phobia, because it’s holding us back and it’s holding back our ability to serve our clients. The problem, as I’ve said before, isn’t that machines can do what we do; it’s that we keep insisting on doing work that machines can do better. Knowing what makes a machine mechanical, and knowing what makes us human — and wisely dividing up our tasks accordingly — is one of the keys to the future success of our profession.

And that brings us to the end of this week’s Blawg Review. In addition to thanking Ed and the Blawg Review team, my thanks go out as well to my Stem colleagues, Emma Durand-Wood and Laurel Fulford, without whose help this edition would not have been possible, as well as to Stem founder Steve Matthews, at whose invitation I had the opportunity to join you this week.

Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

Comments

  1. Jay Shepherd said:

    Great work, Jordan! You are yourself a modern Prometheus (for a Jays fan, that is).

    @ 10:41 pm
  2. Vickie Pynchon said:

    Talk about tour de force! Brilliant and unprecedented. “Hands off the plug people” should live on as long as “you can’t handle the truth!”

    @ 12:01 am
  3. […] case you’re interested, I authored this week’s Blawg Review (#252) with my colleagues at Stem Legal’s Law Firm Web Strategy Blog. The theme is technology run […]

    @ 7:43 am
  4. Well done, Jordan! I am honoured to have a mention, especially under Battlestar Galactica.

    Thank you for putting this interesting and original Blawg Review together.

    Cheers,
    Connie

    @ 11:59 pm
  5. John Flood said:

    Having just finished reading “Do Androids Dream of Electric Sheep?”, I enjoyed this blawg review immensely.

    However, two other pieces I would have included would have been, E M Forster’s “The Machine Stops” and the movie “The Shape of Things to Come”. Both make us think of the kind of society we want and how it should be governed.

    Excellent!

    @ 9:55 am