Foreboding in the Law Library of Achilles

Foreboding in the Law Library of Achilles

 Published in the Maryland Daily Record December 30, 2005 

First fashioned he a shield, great and sturdy, adorning it cunningly in every part, and round about it set a bright rim…  and on it he wrought many curious devices with cunning skill.  Therein he wrought the earth, therein the heavens, therein the sea, and the unwearied sun, and the moon at the full, and therein all the constellations wherewith heaven is crowned … 

            With these words (from Samuel Butler’s translation of The Iliad) the poet Homer begins a lengthy description of the shield the blacksmith god Hephaestus crafted for the Greek champion Achilles.  From the wild profusion of the items Homer tells us were depicted on the shield (including wars and cities and weddings — not to mention an actual lawsuit, over blood money), the reader knows that no real-life object designed for warding off swords and spears could ever contain so much detail.  No soldier, be he ever so doughty, could have carried it.  The shield is a metaphor, virtually, for encyclopedic attention to everything worthy of consideration. 

            Maybe Bronze Age Hellenic warriors could not have actually carried around a representation of everything.  But we in the Silicon Age increasingly can and do.  The leading cultural indicator is the iPod, the device which shrinks perhaps 15,000 compressed songs to less than the volume and weight of a pack of cards, with easy retrieval and playback through headphones or stereos.  Since for most of us music lodged in our subconscious is literally the soundtrack of our lives, and can evoke memories of almost everything, likening the iPod to Achilles’ Shield is not an idle comparison. 

            We in the legal profession have witnessed the fashioning of our own Achilles’ Shield. 

            In the professional lifetime of most practicing lawyers, the effort of each judge, lawyer, firm, county bar and university to maintain an individual collection of law books has been largely abandoned, as has the reliance of researchers on such collections.  The books are still published, but have become far less widely purchased.  Most of us rely now for most of the codes and decisions and dockets and treatises and indices and law review articles and everything else we need to understand the law upon the unseen gnomes of Eagan, Minnesota, who feed the gaping maw of Westlaw, and those of Dayton, Ohio who stoke LEXIS. We no longer own paper books, except for the things we refer to every day, like state codes.  And we do not own Westlaw or LEXIS; we only rent them. 

            Why the sea change?  Why would we give up personal ownership of such vital resources?  

            Those of us who can remember all-paper research know that it truly had its charms.  And within recent memory the on-line resources were neither complete nor reliable enough to make on-line research the only research we did.  It was in that era that the phrase “computer-assisted legal research” a/k/a “CALR,” was coined.  “Assisted” was all we could hope for, if we were being careful.  Only slapdash practitioners relied just on the computer, in fact such reliance was a hallmark of sloppy, jejune research.  But like a teenager stuffing more and more great music in her iPod, the Westlaw and LEXIS gnomes rapidly accreted more and more of the necessary resources in their terabytes.  The moment came when it was possible to be careful and thorough and still never leave a keyboard and monitor.  The moment also came, probably the same moment, when it became palpably more convenient never to leave the keyboard and monitor. 

            That was the tipping point.  Suddenly, the disadvantages of paper sources stood out.  Books were bulky, expensive and time-consuming to maintain.  By contrast, on-line law libraries were eminently accessible, maintenance-free, and not such a terrible deal financially.  And compiling a rentable library was completely feasible.  Unlike the myriad unique and idiosyncratic personal musical odysseys chronicled in our respective iPods, there is basically one universal law library.  Because in general the components of that library are agreed, specialists like LEXIS can be trusted to know what they need to assemble for us. 

            Moreover – and here is the Shield of Achilles part – the entire universal law library can be accessed through any laptop.  Arm your laptop with wi-fi or plug it into your firm’s Ethernet wall-port, and you have it: the equivalent of most of the items you would find in the best-equipped law library.  And no need to forego the paper you still want: if you possess a printer you can print out what you want.  The new, totally portable Shield can make fearsomely equipped legal warriors of us all, wherever. 

            All problems solved?  Happy ending?  One hopes so.  There is another legend about Achilles to bear in mind, though.  He was supposedly invincible.  His mother, the nymph Thetis, had dipped him in the River Styx, and wherever the waters had touched Achilles’ body, he could not be wounded.  But, in an early example of the inability of any system to exclude all error, Thetis had had to hold part of Achilles in order to dip the rest of him.  Her fingers closed around Achilles’ heel.  And the heel from which he was suspended thus did not come in contact with the Styx.  Leading to no great suspense as to which part of his body Achilles later took a fatal wound.  It is axiomatic that every system has an Achilles heel. 

            And here the heel could be centralization. 

            When we rent our resources from electronic vendors, the physical system atrophies.  Go to almost any law library and check out the number of sets of treatises, law reviews, reports, etc. that are no longer kept current.  Ask any law librarian about the brutal way the laws of supply and demand are playing out in the pricing of paper resources.  You will learn that the cost of the paper is inflating, not because the law book manufacturers have been gripped by self-defeating greed, but because with fewer subscribers, the cost of creating the paper resource cannot be as widely spread.  A vicious circle is well in progress, since the high price of the paper resources causes subscribers to fall by the wayside, which raises the prices, which further diminishes the subscriber base, etc.  There is only one possible outcome: the end of most law books as we know them.  The next generation will see this resource disappear, and the disappearance or radical transformation of the law library system. 

            When that process is complete, all the information we lawyers rely upon will be held by a small circle of electronic vendors.  And the holding of all this information is a mission-critical task, not just for us lawyers, but for the civilization our legal system plays such a vital role in holding together.  These few vendors, proprietors of a few banks of spinning disks in Minnesota and Ohio, are becoming the holders of our memory.  And for the law, as we all know, memory is crucial.  Without memory, there is no stare decisis and no precedent, no judgments to which faith and credit is accorded.  

            Think about the media involved.  What do we really know about their security?  I asked representatives of Westlaw and LEXIS about this.  Westlaw, it turns out, parks its data on six redundant servers, but four of them are within a half mile of each other.  Westlaw also has off-site storage of backups.  LEXIS keeps it data at two redundant centers, 45 miles apart. 

           What if there were a war?  It is likely that a half-dozen well-placed nuclear blasts with their attendant electromagnetic pulses could erase, if they did not vaporize, the few computer banks where most of our legal memory resides.  One bomb could apparently take out 4 of Westlaw’s 6 servers.[1]  One bomb’s pulse, covering the 45 miles between the centers, might be able to take out LEXIS altogether.[2]  And by “out” I mean out forever, as in totally erased. 

            There could also be vulnerability to sabotage, either by hacker targeting or as collateral damage to some kind of computer virus.  Of course hacking is nothing new.  LEXIS says that so far as it knows no hacker has ever succeeded in penetrating or tampering with its legal databases.  (There was an incident earlier this year where a LEXIS customer compromised the security, but not the integrity, of a LEXIS-owned database, but that was, if you will, the opposite problem: too wide dissemination, not the rendering of data immune to dissemination forever.)  But there is an inherent risk in maintaining a database whose very commercial function is to be subject to querying by and interaction with the public all day, every day. 

            Given all this, it is easy to imagine that after some future cataclysm, the role of the medieval monks in transcribing the books of antiquity might be reprised by latter-day monastics whose equivalent contribution would be rescanning F.2d and ALR. 

            The irreducible dilemma with any such enterprise, be it library or Google, is that centralized data is vulnerable.  The great library at Alexandria was a marvelous and indeed indispensable thing — until it burned.  The legend has it that one of the Ptolemies ordained that the police would seize every book brought by each traveler into Alexandria, have it swiftly copied by scribes standing by at the library, and then return it to its owner, much as the Ptolemies’ successors in the field of American law, the West folks in Minnesota, engorge and process each new addition to the agreed legal canon.  But centralizing all that information also magnified its exposure.  We know the titles of many books that did not make it down through time to us because they were “preserved” in just such a fashion at Alexandria.  It was all in one place, and hence it was all susceptible to being burned in one fire.  How certain can we be that our increasingly centralized canon will physically pass through fires, floods, wars, or even power outages, over the next hundred years, to reach our great grandchildren? 

            We shall find out, because we have no realistic alternative.  Computers are so vastly more efficient than paper at miniaturizing, preserving, and organizing and retrieving data, including legal information, that they are and should be the way we go about it.  And let’s be fair: paper records don’t have a great survival rate either.  Yes, there are the still surviving British parchment parliamentary rolls that chronicled events like the deposing of Richard II in 1399.  But good luck trying to find U.S. servicemen’s records from World War II, most of which were lost in the 1973 fire at the federal repository in St. Louis.  And if you have ever tried to research the old paper records of individual cases in official court files, you know that there is frequently a gap between what theoretically exists and what can actually or timely be located.  Paper has been a wonderful way of preserving redundantly distributed data, like official court reports, but a mediocre way of preserving unique data.  Misfiling, de-accessioning, bookworms, and fire and flood take their toll on unique information captured in paper form.  And these days, the name of the game is preserving everything, including the unique data.  And for that you need an Achilles’ Shield. 

            But it has, or should have, a necessary implication.  The preservation of our legal memory is a national priority, right up with everything else our homeland security apparatus supposedly protects.  Insufficient attention has been paid to the implications of the centralization of that whole memory in the hands of a few.  It is simply too important a matter to leave completely unregulated.  A Congressional inquiry into legal database data security would be an excellent idea, in light of the de facto control of a crucial national resource by a handful of vendors.  How safe is it?  We don’t want to find out, a la Katrina, that the no one has adequately secured the data against the insults to its integrity that are sure to come.  We need to set some standards, and make sure they’re observed. 

            In short, the direction of the enterprise for preserving and accessing our legal history is clear.  But the safety of the enterprise is not clear at all.  And that lack of clarity should not be acceptable.  We need to know. 

            After Achilles was slain, his shield and armor were kept safe.  Odysseus, recognizing their value, competed with Ajax for them, and won the inheritance.  Ajax, cognizant of what he had lost, went mad and slew himself.  That suicide may have been an extreme act, but it shows that when it came to compendiums of knowledge, the ancients understood their uniqueness and importance.  Do we? 


 

[1]   The Air Force seems to have taken down my source for this conclusion: http://www.airpower.maxwell.af.mil/airchronicles/kopp/apjemp.html

[2] “In stark contrast, high-altitude burst, detonated a few hundred kilometers above the surface of the Earth, has as its salient featured effect the ability to simultaneously bathe an entire continent in EMP. The ability of EMP to induce potentially damaging voltages and currents in unprotected electronic circuits and components is well-known. The immense footprint of EMP can therefore simultaneously place at risk unhardened military systems, as well as critical infrastructure systems to include power grids, telecommunication networks, transportation systems, banking systems, medical services, civil emergency systems and so forth.” 

Testimony of George Ullrich, the Deputy Director of the Defense Special Weapons Agency, HR Comm.  on National Security, July 6, 1997.  

Copyright (c) Jack L. B. Gohn

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