The impact of computers on the legal profession: Evolution or revolution?

Northwestern University Law Review

Volumn 102, Issue 4, 2008, Pages 1827-1868

  Marcus, Richard L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 57649157721     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (288)

1. See John Tierney, Hitting It Off, Thanks to Algorithms of Love, N.Y. TIMES, Jan. 29, 2008, at F1 (reporting that one online dating service forbids customers to search for their own dates, instead using its own computer-based analysis to link couples, and noting the dating service's claim that its matchmaking was responsible for two percent of the marriages in America last year).
2. See John Schwartz, When Computers Attack, N.Y. TIMES, June 24, 2007, § 4, at 1 (reporting that the jamming of governmental computers in Estonia, after the Estonian government planned to remove Soviet-era war memorials, was initially viewed as the dawn of a new age in conflict employing the potentially crippling effects of computer attack).
3. See Going Green, ECONOMIST, Mar. 3, 2007, at 71 (reporting growing concern about the environmental impact of computer operations, which may account for as much as four percent of American electricity consumption).
4. John Leland, Off to Resorts, and Carrying Their Careers, N.Y. TIMES, Aug. 13, 2007, at A1 (reporting that many people, including lawyers, can operate full-time from such locations as Jackson, Wyoming or Steamboat Springs, Colorado).
5. See Katie Hafner, Reservations on Demand, N.Y. TIMES, June 18, 2007, at C1 (reporting that computerized reservation systems enable restaurants to store and utilize myriad details about the dining preferences of customers).
6. See Amol Sharma, Playing Cellphones on Stage Has Ring of Respectability, WALL ST. J., May 29, 2007, at A1 (describing Manhattan musical performance in which Bora Yoon used a Samsung phone to perform her "mobile-phone composition" entitled "Plinko").
7. RICH LING, THE MOBILE CONNECTION: THE CELL PHONE'S IMPACT ON SOCIETY 174 (2004).
8. HERMAN MELVILLE, BARTLEBY, THE SCRIVENER (Dodo Press 2006) (1853).
9. I have a colleague who laments this change and finds that many students think that citing a blog provides sufficient authority for an assertion about a legal issue. She is right to deplore that attitude. But see Beth Simone Noveck, Wikipedia and the Future of Legal Education, 57 J. LEGAL EDUC. 3, 5-8 (2007) (urging support for students' desire to use wiki online materials because wikis are "ideally suited to the deliberative and collaborative development of knowledge").
10. But cf. Matthew Bodie, The Future of the Casebook: An Argument for an Open-Source Approach, 57 J. LEGAL EDUC. 10, 14-19, 34-35 (2007) (urging that new electronic substitutes for the traditional casebook be employed).
11. For example, even the adept probably need more time to orient themselves in a long decision by skipping from screen to screen than by flipping pages in a reporter.
12. See William K.S. Wang, The Restructuring of Legal Education Along Functional Lines, 17 J. CONTEMP. LEGAL ISSUES 331 (2008).
13. These services are: (1) Imparting knowledge: One major function, mainly during a live class with a professor, is to impart knowledge. This activity ordinarily focuses on a book as well as in-class activities.
14. Counseling and placement: This function includes advising on selection of courses and assistance in finding a job using the legal training obtained at the school.
15. Credentialing: This service includes both examining and grading individual courses and awarding a degree for completion of a full course of study.
16. Coercion: This function pressures a student to do assigned work, partly by in-class calling on students and partly by giving low grades to those who perform poorly.
17. Club membership: This function relies on the selective nature of law schools to provide an atmosphere that includes interaction with a similarly select group and the lifelong desirability of association with the school's prestige. Id.
18. See Section of Legal Educ. & Admissions to the Bar, ABA, Standards for Approval of Law Schools, Standard 306(d) (2007) (limiting credit for online education to four hours per semester and twelve hours total).
19. See William K.S. Wang, The Unbundling of Higher Education, 1975 DUKE L.J. 53, 54.
20. See infra text accompanying notes 29-31 (describing the outsourcing of "back office" and other law firm operations to remote locations).
21. See Social Science Research Network (SSRN) Home Page, http://www.ssrn.com (last visited July 25, 2008).
22. For a discussion, see NLJ Roundtable: Blogs and Scholars, NAT'L L.J., Oct. 8, 2007, at 22 (reporting comments at a roundtable discussion sponsored by the National Law Journal and the Association of American Law Schools on "Blogging, Scholarship, and the Bench and Bar"). One professor suggested that if a law school wanted to encourage its faculty to engage in blogging "the best way to encourage faculty would be for it to count, and by count I mean help people get tenure." Id. (comments of Professor Paul Butler).
23. For example, the Northwestern University Law Review offers Colloquy pieces online that are not included in the hard-copy journal. See Northwestern University Law Review Colloquy, http://colloquy.law. northwestern.edu (last visited July 25, 2008).
24. See, e.g., THOMAS J. O'CONNOR, THE AUTOMATED LAW FIRM: A COMPLETE GUIDE TO SOFTWARE AND SYSTEMS (4th ed. 2000). This book is supplemented annually and was first published in 1994.
25. Law Office Computing, for example, began publication in 1990. The magazine's mission statement champions its "specific, legal technology focus." Law Office Computing - Mission Statement, http://www. lawofficecomputing.com/EDC/about-us/mission-statement.php (last visited Apr. 11, 2008).
26. See, e.g., Gurmark Singh et al., An Empirical Study of the Use of IT by Small and Large Legal Firms in the UK, 2002(1) J. INFO. L. & TECH., http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002-1/ singh ("The large companies - being led by the top 30 law firms - are advanced in their understanding of the IT issues, and are therefore in a position to compete strategically." (citation omitted)).
27. Stephen M. Taylor, Techsetters: Rothgerber, Johnson & Lyons, LAW OFF. COMPUTING, Dec/Jan. 2006, at 10, 11.
28. See This Week in Recorder History: Stories from the Week of July 9-15, RECORDER (S.F.), July 9, 2007, at 4.
29. See Geri L. Dreiling, Choosing Up Sides, A.B.A. J., May 2007, at 28 (citing research from the Pew Internet and American Life Project, in the context of discussing state responses to online legal-match markets).
30. Michael Aneiro, Tech @10, AMLAW TECH, Sept. 2005, at 24.
31. Marcy Burstiner, Making It Better: Big Firms Are Spending More to Upgrade Their Technology and Expand Their IT Staffs, the Annual AmLaw Tech Survey Shows, AM. LAW., Nov. 2006, at 55.
32. See Zusha Elinson, Spinning the Globe, RECORDER (S.F.), May 23, 2007, at 1.
33. Id.
34. See Richard Lloyd, Home Away From Home, AM. LAW., Sept. 2007, at 75 ("Clifford Chance's new Gurgaon facility makes it the first global firm to locate part of its support business in India.").
35. See Arm Greenwood, Manhattan Work at Mumbai Prices, A.B.A. J., Oct. 2007, at 36 (reporting that India now has about 100 legal outsourcing companies employing 600 to 800 Indian attorneys, that some of them provide legal work directly to American corporate clients, and that there is an expectation that revenues for these Indian providers of legal services will reach $4 billion by 2015);
36. Vesna Jaksic, Guidelines for Outsourcing Grow, NAT'L L.J., Apr. 30, 2007, at 5 ("A 2005 study by Forrester Research . . . predicted that the value of legal outsourcing work to India could rise from $80 million to $4 billion by 2015.").
37. See Karen Donovan, Law Firms Go a Bit Hollywood to Recruit the YouTube Generation, N.Y. TIMES, Sept. 28, 2007, at C6;
38. Sheri Qualters, Law Firms Post Online Video Clips to Attract Associates, RECORDER (S.F.), Jan. 23, 2007, at 3.
39. See, e.g., Frank C. Morris, Jr., On Call 24/7, RECORDER (S.F.), Mar. 7, 2007, at 4 (describing concerns about claims by employees for overtime pay or compensation for stress due to the prevalence of wireless devices).
40. See Elinson, supra note 28.
41. See David Hricik & Amy Falkingham, Lawyers Still Worry Too Much About Transmitting E-Mail Over the Internet, 10 J. TECH. L. & POL'Y 265, 299-300 (2005) (arguing that concerns about client confidentiality are overblown in view of methods of protecting against interception).
42. See Jason Krause, Eek Is for E-Mail, A.B.A. J., May 2007, at 62 (reporting that the "sheer volume of e-mail" is a more pressing problem for lawyers than confidentiality).
43. Barton v. U.S. Dist. Court, 410 F.3d 1104, 1109 (9th Cir. 2005) (footnote omitted).
44. See Kathryn A. Thompson, The Too Much Information Age, A.B.A. J., July 2007, at 28 (describing the problem of "lawyers who find themselves in possession of information they would really rather not have" and the varying responses to three examples of this problem).
45. See Anthony Paonita, All Aboard: As Law Departments Get More Tech-Savvy, They're Insisting that Firms Come Along for the Ride, AM. LAW., Mar. 2007, at 77 (describing client pressures).
46. Id. at 78 (describing Pitney Bowes Inc.'s use of e-billing data and quoting the company's manager of legal operations, who explained, "It's not enough just to recruit diverse attorneys . . . . We want them to use diverse teams on our matters.").
47. See U.S. Courts, Case Management/Electronic Case Files, http://www.uscourts.gov/cmecf/cmecf-about.html (last visited Oct. 20, 2006).
48. See id.
49. Jonathan Lippman, E-Filing: Time to Ride the Paperless Wave, N.Y.L. J., Jan. 23, 2006, at 11;
50. see also Pam Smith, Asbestos Cases Forsake Paper Filings for Silicon, RECORDER (S.F.), Aug. 29, 2006, at 2 (reporting that the San Francisco Superior Court had inaugurated an electronic filing requirement for asbestos personal injury cases).
51. See Don J. DeBenedictis, Let Your Fingers Do the Walking, S.F. DAILY J., Mar. 26, 2007, at 1 (reporting that the complex litigation division of the Orange County Superior Court has begun to require e-filing).
52. For example, the September 2006 issue of California Lawyer carried an advertisement on page seven from the American Arbitration Association, a private provider of arbitration services: OUR ONLINE FILING IS AS EASY AS AAA. Innovation and convenience. That's what you get with the new AAAWebFile. Simply log onto our website and select "File a Case Online" - in no time, your case is underway. With AAAWebFile, you get 24/7 access to many timesaving services, like the ability to check the status of your case and share vital information with parties involved.
53. DeBenedictis, supra note 44.
54. Id.
55. Betsy Reynolds, Anticipating the Courts' Moves: Manatt Phelps Sets Up E-Filing Protocols, LAW TECH. NEWS, July 2004, at 31.
56. See John Caher, Slow Computer Found Not to Excuse Late Filing in Bankruptcy Proceeding, N.Y.L.J., July 26, 2005, at 1 (describing case in which delays in e-filing prevented the automatic stay in bankruptcy from applying to the sale of the debtor-petitioner's house). In another case, a judge rejected a last-minute effort to stop an execution because it was filed after the court's 5 p.m. closing time.
57. Ralph Blumenthal, Texas Judge Draws Outcry for Allowing an Execution, N.Y. TIMES, Oct. 25, 2007, at A18. The story explains that "[t]he judge . . . has said she did not know that Mr. Richard's defense lawyers in Houston were having computer problems when they asked the court for 20 more minutes to deliver their final state appeal to Austin hours before the scheduled execution on Sept. 25." Id. It is unclear whether the computer failure was solely about transmitting the documents, but the lawyers for the condemned man had asked for an additional twenty minutes to deliver hard copy documents to the court. Some lawyers have found court tutorials on e-filing inadequate. In the Central District of California, for example, a lawyer has prepared a twenty-six page guide for e-filing to assist lawyers in avoiding mishaps.
58. See Robert Iafolla, Litigator Writes Unofficial Use Manual for E-Filing, S.F. DAILY J., Jan. 30, 2008, at 1. Failures of communication also run the other way. In Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365 (6th Cir. 2007), counsel did not receive notice of entry of the court's order denying a motion, and thus did not file a notice of appeal in the allowed time. Although the criteria for reopening the time to appeal under rule 4(a)(6) of the Federal Rules of Appellate Procedure were satisfied, the district court refused to do so because the problem resulted from counsel's failure to register his email address to receive notice of the court's rulings by email. Id. at 370. Noting that "here all [the attorney] had to do was register his email address with the district court's [case management and electronic case filing] system to receive the court's orders," the appellate court affirmed. Id. at 371.
59. Caher, supra note 49 ("Problems occurring in counsel's office, such as a poor internet connection or a hardware problem will not excuse a debtor's untimely filing . . . . It is incumbent on the debtor to show that the clerk's office was subject to a [computer] system failure." (quoting In re Sands, 328 B.R. 614, 619 (Bankr. N.D.N.Y. 2005))); cf. King v. Berindoague, 928 A.2d 693, 698 (D.C. 2007) (holding that a jury demand should have been deemed timely filed even though it was rejected due to a courthouse computer malfunction, stating that the "[a]ppellants certainly cannot be held responsible for the inoperable state of the computers in the clerk's office").
60. See DeBenedictis, supra note 44 (reporting that the Orange County Superior Court saves $150,000 a year in storage space by requiring electronic filing for its complex litigation court).
61. See, e.g., Lippman, supra note 43 ("For the courts, e-filing benefits include storage savings, reduced processing time, and the opportunity to protect court files from loss or destruction.").
62. See John Bringardner, Swimming in Files: PACER's E-Filing Programs Are Helping New Orleans Lawyers Rebound, LAW TECH. NEWS, Apr. 2006, at 44.
63. The following discussion is drawn from Richard L. Marcus, A Modest Proposal: Recognizing (at Last) that the Federal Rules Do Not Declare that Discovery Is Presumptively Public, 81 CHI.-KENT L. REV. 331, 337-39 (2006) (discussing the trend towards putting e-filed court records online and the privacy concerns implicated by the trend, especially in sensitive cases such as bankruptcy and divorce).
64. Japan evidently has a relatively open attitude toward court records: As a general matter the court records of a case in Japan are public records just as the trial itself is a public event. Any person may seek to review the records of a case. However, parties to the case may, by motion, seek an order limiting the disclosure of the record or portions thereof that would disclose a trade secret or would violate the privacy rights of a party. CARL F. GOODMAN, JUSTICE AND CIVIL PROCEDURE IN JAPAN 341-42 (2004).
65. Compare the following description of German access practices: Case records in civil cases in Germany are not open to the public either before or after judgment. The parties and their counsel are entitled to free access to the official records of their cases, but others may look at case records only with the consent of the parties involved or by order of the chief judge of the court upon a showing of some legitimate interest in so doing. PETER L. MURRAY & ROLF STÜRNER, GERMAN CIVIL JUSTICE 182 (2004).
66. Carolyn Elefant, How Much Privacy Do Litigants Deserve in E-Filing?, LEGAL TIMES, Oct. 9, 2000, at 29;
67. see also Andy Seldon, The Hidden Hazards of E-Filing: Sophisticated Searches of Public Records Can Spur Identity Fraud, LAW TECH. NEWS, Aug. 2003, at 16.
68. Jennifer 8. Lee, Dirty Laundry, Online for All to See, N.Y. TIMES, Sept. 5, 2002, at G1.
69. See generally Natalie Gomez-Velez, Internet Access to Court Records - Balancing Public Access and Privacy, 51 LOY. L. REV. 365, 398-413 (2005) (discussing the difficulty in balancing the need to protect "private, sensitive information" and the judicial transparency function of open information).
70. E-Government Act of 2002, Pub. L. No. 107-347, § 205(c)(1), 116 Stat. 2899, 2914.
71. See id. § 205(c)(3).
72. See FED. R. CIV. P. 5.2 (providing for the redaction of certain personal information from materials filed in court and authorizing filing under seal pursuant to a court order to protect additional information).
73. Doe v. City of New York, 201 F.R.D. 100, 101 (S.D.N.Y. 2001). The judge made the observation in connection with denying the plaintiff's motion for leave to proceed by a pseudonym so that computerized searches of the court's records using her name would not turn up her suit. Id. at 102-03.
74. See Lee, supra note 58.
75. See Julie O'Shea, Private Judges Keep Divorce Quiet, RECORDER (S.F.), June 13, 2005, at 1. Divorce proceedings are subject to higher protections in other countries. In Germany, for example, proceedings in family cases are usually closed to the public.
76. MURRAY & STÜRNER, supra note 56, at 186.
77. In significant part, the following analysis draws on Richard L. Marcus, Beyond E-Discovery: Toward Brave New World or 1984?, 25 REV. LITIG. 633 (2006).
78. See Advantages of Videoconferencing Grow with Use, THIRD BRANCH, Aug. 2006, at 7 (reporting on a Federal Judicial Center study on the use of videoconferencing).
79. Sidney Post Simpson, The Problem of Trial, in DAVID DUDLEY FIELD: CENTENARY ESSAYS: CELEBRATING ONE HUNDRED YEARS OF LEGAL REFORM 141, 142 (Alison Reppy ed., 1949).
80. Paul D. Carrington, Virtual Civil Litigation: A Visit to John Bunyan 's Celestial City, 98 COLUM. L. REV. 1516 (1998).
81. Id. at 1524.
82. Id. at 1528-29.
83. Id. at 1525-26.
84. Id. at 1526.
85. Id.
86. Id. at 1524.
87. One commentator has observed that people can usually read a transcript of trial proceedings five times as fast as they can watch a video of them, making that aspect of appellate review much more time-intensive. See Henry H. Perritt, Jr., Changing Litigation with Science and Technology: Video Depositions, Transcripts and Trials, 43 EMORY L.J. 1071, 1087-88 (1994).
88. Some see the introduction of these techniques as a momentous development. One law professor, for example, says that "[t]he use of electronic visuals is as significant as the introduction of cross-examination in the 1870s and formal discovery in the 1930s. This will be the greatest change in advocacy in the career of anybody alive or about to be conceived." Lisa Brennan, Pitching the Gen-X Jury: As Jurors Get Younger, Law Schools Are Thinking More Like MTV, NAT'L L.J., June 7, 2004, at 1 (quoting Professor Stephen Lubet of Northwestern University School of Law);
89. see also Henry Gottlieb, Plaintiffs' Lawyers Have High-Tech Advantage in Courtroom, RECORDER (S.F.), Feb. 28, 2006, at 2 (reporting that plaintiffs' lawyers are more likely to use a "$1,500-a-day technical director hired to spike the presentation with computer-generated graphics").
90. See supra notes 68-74 and accompanying text.
91. William W Schwarzer, Reforming Jury Trials, 132 F.R.D. 575, 588 (1991).
92. Lucien v. McLennard, 95 F.R.D. 525, 526 n.2 (N.D. Ill. 1982).
93. For an argument in favor of this technique by the judge who pioneered it in Ohio, see James L. McCrystal & Ann B. Maschari, Will Electronic Technology Take the Witness Stand?, 11 U. TOL. L. REV. 239 (1980).
94. See Gus J. Solomon, Techniques for Shortening Trials, 65 F.R.D. 485, 489 (1975).
95. Charles R. Richey, A Modern Management Technique for Trial Courts to Improve the Quality of Justice: Requiring Direct Testimony to Be Submitted in Written Form Prior to Trial, 72 GEO. L.J. 73 (1983);
96. see also Kuntz v. Sea Eagle Diving Adventures Corp., 199 F.R.D. 665, 666-68 (D. Haw. 2001) (denying the plaintiff's motion that he be allowed to present direct evidence orally instead of in writing).
97. William W Schwarzer, Alan Hirsch & David J. Barrens, The Analysis and Decision of Summary Judgement Motions, 139 F.R.D. 441, 474 (1992);
98. see also Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 142-43 (2d Cir. 1998) (upholding use of this approach if the parties forgo their right to a full trial).
99. Fantozzi v. Sandusky Cement Prod. Co., 597 N.E.2d 474, 480 (Ohio 1992).
100. Elkins v. Superior Court, 163 P.3d 160, 168 (Cal. 2007).
101. 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2142 (2d ed. 1994).
102. Douglas Laycock, The Triumph of Equity, 56 LAW & CONTEMP. PROBS. 53, 66 (1993).
103. Donald M. Middlebrooks, Reviving Thomas Jefferson's Jury: Sparf and Hansen v. United States Reconsidered, 46 AM. J. LEGAL HIST. 353, 387 (2004).
104. Martin H. Redish, Electronic Discovery and the Litigation Matrix, 51 DUKE L.J. 561, 565 (2001).
105. GEORGE L. PAUL & BRUCE H. NEARON, THE DISCOVERY REVOLUTION: E-DISCOVERY AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE 9-12 (2006).
106. Charles R. Ragan & Lori Ann Wagner, Competence and Credibility in E-Discovery, TRIAL, Apr. 2007, at 40.
107. James Gibson, A Topic Both Timely and Timeless, 10 RICH. J.L. & TECH. 49, ¶ 4 (2004), http://law.richmond.edu/jolt/ v10i5/article49.pdf.
108. See Edwin M. Larkin, Insurers Are Getting in on the Act, NAT'L L.J., Aug. 20, 2007, at S1 ("Liability insurers are . . . beginning to address the costs of electronic discovery in their insurance products.").
109. See, e.g., ADAM I. COHEN & DAVID J. LENDER, ELECTRONIC DISCOVERY: LAW AND PRACTICE (2005);
110. JOAN E. FELDMAN, ESSENTIALS OF ELECTRONIC DISCOVERY (2003);
111. SHELDON E. FRIEDMAN, THE LITIGATOR'S GUIDE TO ELECTRONIC EVIDENCE AND TECHNOLOGY (2006);
112. ALAN M. GAHTAN, ELECTRONIC EVIDENCE (1999);
113. MICHAEL R. OVERLY, OVERLY ON ELECTRONIC EVIDENCE IN CALIFORNIA (1999).
114. See Of Bytes and Briefs, ECONOMIST, May 19, 2007, at 34 (describing the intrusiveness and burdensomeness of e-discovery).
115. For example, the ABA Journal recently reported that the advent of MySpace and similar social networking websites has produced a new source for discovery. Stephanie Francis Ward, MySpace Discovery, A.B.A. J., Jan. 2007, at 34. This article appears to describe searches of such social networking sites that do not depend on use of formal discovery tools. Id.
116. Consider the following description: In the author's own experience, a complex litigation between two large corporate parties can generate the equivalent of more than one hundred million pages of discovery documents, requiring over twenty terabytes of server storage space. Assuming a review rate of one box of paper documents per weekday, per reviewer, a one hundred million page volume corresponds to over thirty person-years of review for each party. In ecological terms, each side would require approximately 6,250 trees just to print one copy of each of the documents it produced and of each of the documents it received. Robert Douglas Brownstone, Collaborative Navigation of the Stormy e-Discovery Seas, 10 RICH. J.L. & TECH. 53, ¶ 21 (2004), http://law.richmond.edu/jolt/v10i5/article53.pdf.
117. Jason Krause, What a Concept!, A.B.A. J., Aug. 2003, at 60.
118. David Horrigan, Producing Those Documents, NAT'L L.J., Mar. 17, 2003, at C3.
119. Ellen Byron, Computer Forensics Sleuths Help Find Fraud, WALL ST. J., Mar. 18, 2003, at B1. Despite this prediction, it seems that nonelectronic discovery and evidence remain important.
120. See Socha Consulting LLC, 2007 Socha-Gelbmann 5th Annual Electronic Discovery Survey, http://www.sochaconsulting.com/2007surveyresults.php (last visited July 24, 2008). The forecast for 2008 revenues is $3.32 billion and $4.077 billion for 2009. Id.;
121. see also Leigh Jones, The Surging Evolution of E-Discovery, NAT'L L.J., Aug. 2, 2004, at 1 (projecting $1.8 billion e-discovery costs for 2004).
122. Since 1996, I have served as Special Reporter of the Advisory Committee on Civil Rules, and in that capacity I was involved in the development of the amendments to those rules designed to deal with e-discovery that went into effect on December 1, 2006. In this Essay, I speak for myself alone and not for the Advisory Committee or any of its members.
123. The following discussion draws on Richard L. Marcus, Confronting the Future: Coping with Discovery of Electronic Materials, 62 LAW & CONTEMP. PROBS. 253, 258-69 (2001).
124. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 362 (1978) ("[T]here is no reason to think that the same information could be extracted any less expensively if the records were kept in less modern forms. Indeed, one might expect the reverse to be true, for otherwise computers would not have gained such widespread use in the storing and handling of information.").
125. See, e.g., Hayes v. Compass Group USA, Inc., 202 F.R.D. 363, 366 (D. Conn. 2001) (requiring the defendant to produce all computerized information on age discrimination cases or grievances, but not that it search through its hard copy files for similar information). Judge William Schwarzer recognized this sort of difference: Discovery that otherwise might be impermissibly burdensome, such as requiring detailed identification of all known documents referring to relevant issues, may not be burdensome if the computerized system is able to generate the identifications.
126. WILLIAM W SCHWARZER ET AL., CIVIL DISCOVERY AND MANDATORY DISCLOSURE: A GUIDE TO EFFECTIVE PRACTICE 1-23 (2d ed. 1994).
127. Here I am referring to problems of accessibility and "legacy" data (stored on systems not presently in use or available).
128. See FED. R. CIV. P. 26(f)(3)(C) (requiring that the discovery plan cover "any issues about disclosure or discovery of electronically stored information").
129. See FED. R. CIV. P. 26(b)(2)(B) ("A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost").
130. See FED. R. CIV. P. 34(b)(1)(C), (b)(2)(E)(ii).
131. See FED. R. CIV. P. 37(e).
132. For discussion of this trend, see Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. REV. 747, 753-68 (1998).
133. This firm is Redgrave Daley Ragan & Wagner LLP, with offices in San Francisco; Washington, D.C.; Minneapolis; and Kansas City, Missouri. Two of its partners are authors of an article quoted above. See Ragan & Wagner, supra note 91.
134. On this point, see infra notes 121-132 and accompanying text (regarding the impact of computer technology on the protections of the Fourth Amendment).
135. See Coca-Cola Bottling Co. of Shreveport v. Coca-Cola Co., 107 F.R.D. 288, 290 (D. Del. 1985) ("Except for a few privileged matters, nothing is sacred in civil litigation . . . .").
136. Nicholas Varchaver, The Perils of E-mail, FORTUNE, Feb. 17, 2003, at 96.
137. See John Simerman, Lawyers Dig Into FasTrak Data, OAKLAND TRIB., June 5, 2007, at 1 (describing the discovery of data about spouses' travels from the records of computerized bridge toll devices);
138. Brad Stone, Tell-All PCs and Phones Transforming Divorce, N.Y. TIMES, Sept. 15, 2007, at A1 (quoting a divorce lawyer who says that information from computerized communications devices "has completely changed our field").
139. See Corynne McSherry, New E-Discovery Rules Could Unduly Burden Business, Threaten Privacy, S.F. DAILY J., Aug. 31, 2007, at 4. The case is Columbia Pictures, Inc. v. Bunell, 245 F.R.D. 443 (C.D. Cal. 2007).
140. Columbia Pictures, 245 F.R.D. at 448.
141. McSherry, supra note 117.
142. See FED. R. CIV. P. 37(e), which precludes sanctions for the loss of electronically stored information that cannot be produced due to the "routine operation" of a party's electronic information system in "good faith." The "good faith" component recognizes that sometimes a party will need to alter the routine operation of its information system to retain information potentially discoverable in the case.
143. See FED. R. CIV. P. 26(f) advisory committee's note to 2006 amendments.
144. Anemona Hartocollis, When the Trill of a Cellphone Brings the Clang of Prison Doors, N.Y. TIMES, July 16, 2007, at B1.
145. Adam Liptak, Driver's License Emerges as Crime-Fighting Tool, but Privacy Advocates Worry, N.Y. TIMES, Feb. 17, 2007, at A10. In the same vein, in San Francisco the police have begun using a gadget that can scan the license plates on a street full of cars and instantly alert police to which vehicles have been reported stolen.
146. See Demian Bulwa, High-Tech Help for Police: Gadget Scans License Plates, S.F. CHRON., Oct. 13, 2007, at A1 (reporting that this device assisted police in apprehending a suspect in a recent abduction).
147. See, e.g., Kam C. Wong, The Discovery of Computer Crime in Hong Kong: A Case Study of the Crime Creation Process, 2005(1) J. INFO. L. & TECH., http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2005-1/ wong/;
148. Keith Bradsher, China Enacting High-Tech Plan to Track People, N.Y. TIMES, Aug. 12, 2007, at A1 (describing the installation of 20,000 police surveillance cameras along streets in Shenzhen, China). Crossborder efforts at computer sleuthing have raised dicey legal issues.
149. See Nicolai Seitz, Transborder Search: A New Perspective in Law Enforcement?, 7 YALE J.L. & TECH. 23 (2004) (describing the efforts of German police to hack a New York server to obtain an email message without official authorization when they feared the suspect would delete the message). For a report on American developments by a former FBI Director,
150. see William S. Sessions, Evil Eye, AM. LAW., Nov. 2007, at 75 (relating that a number of U.S. cities are planning to introduce "London-style" surveillance systems and reflecting on the invasion of privacy that could result).
151. Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 COLUM. L. REV. 279, 280 (2005).
152. Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 537 (2005).
153. See, e.g., Kyllo v. United States, 533 U.S. 27 (2001) (holding that police use of a thermal imager to observe the interior of a home constituted a search).
154. See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1949) (positing a world in which technology enables the state to monitor the activities of everyone at all times).
155. See, e.g., United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (holding that attaching a GPS device to the car of a suspect to monitor his activities did not constitute a search or seizure because it enabled observation of activities in "public," but reserving issue whether mass surveillance would be treated the same);
156. see also Renée McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. REV. 409 (2007) (arguing that Fourth Amendment doctrine is sufficient to provide protections with regard to the use of GPS technology).
157. See Elizabeth Millards, Online Background Checks, A.B.A. J., Jan. 2007, at 37 (quoting the founder of CollegeRecraiter.com about students' expectation that information they post on various sites such as Facebook and MySpace cannot be accessed by potential employers and college admissions officials).
158. See, e.g., United States v. Andrus, 483 F.3d 711 (10th Cir. 2007) (finding that the defendant's elderly father - who lived with the defendant - had the apparent authority to give permission to search the defendant's computer and that the police downloaded all of the information on the computer without regard to whether it was password protected); United States v. Buckner, 473 F.3d 551 (4th Cir. 2007) (involving a case in which the court held that a wife suspected of online fraud had the apparent, though not actual, authority to consent to a search of the computer she shared with her husband and the search turned up child pornography material leading to the prosecution of the husband).
159. Kerr, supra note 124, at 303;
160. see also Adam Liptak, If Your Hard Drive Could Testify . . ., N.Y. TIMES, Jan. 7, 2008, at A12 (predicting the reversal of a decision by a U.S. district judge, who suppressed a customs search of a laptop on the grounds that "[e]lectronic storage devices function as an extension of our own memory" and "[t]hey are capable of storing our thoughts, ranging from the most whimsical to the most profound").
161. See United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008). The majority held that the search was not illegal, but Judge Thomas was unnerved and dissented: One of the three extremely able district judges who rejected the government's arguments summarized it best, stating: "What happened to the Fourth Amendment? Was it repealed somehow?" . . . . The stakes in this case are high. The government claims the right to seize and retain-without warrant or even a suspicion of criminal activity - any patient's confidential medical record . . . contained in a computer directory so long as it has a legitimate warrant or subpoena for any other individual patient's record that may be stored on the same computer. The government attempted to justify this novel theory on a breathtaking expansion of the "plain view" doctrine, which clearly has no application to intermingled private electronic data. Id. at 1116-17 (Thomas, J., concurring in part and dissenting in part).
162. See Thomas K. Clancy, The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer, 75 MISS. L.J. 193, 195-201 (2005);
163. see also David J.S. Ziff, Note, Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant, 105 COLUM. L. REV. 841 (2005) (arguing that existing Fourth Amendment doctrine is sufficient).
164. MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM (1991).
165. ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993).
166. See JOHN P. HEINZ ET AL., URBAN LAWYERS: THE NEW SOCIAL STRUCTURE OF THE BAR (2005);
167. JOHN P. HEINZ & EDWARD O. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (1982).
168. See Elizabeth Goldberg, The Departed, AM. LAW., May 2007, at 145 (contrasting bankers' view in the past that high rates of partner departures were a "red flag" of firm difficulties with a new view that it may be a sign of vitality);
169. see also Nathan Koppel, Partnership Is No Longer a Tenured Position, WALL ST. J., July 6, 2007, at B1 ("Once rare, quiet and restricted to the most competitive firms, 'deequitization' has become one of the most popular buzz words in law-firm management").
170. See Koppel, supra note 137.
171. Kellie Schmitt, McDermott Plans to Fill Cheap Seats, RECORDER (S.F.), Nov. 1, 2007, at 1 ("[Electronic discovery has dramatically increased the amount of basic work that usually goes to those high-priced associates.").
172. Goldberg, supra note 137, at 146.
173. See Julie Triedman, Seven-Year Itch, AM. LAW., Nov. 2007, at 20 (describing EEOC litigation and the eventual settlement by the firm for $27.5 million).
174. Nathan Koppel, Law Firms Try New Idea: Manager-Focused CEO, WALL ST. J., Jan. 22, 2007, at B3.
175. See Zusha Elinson, Back in the Groove, RECORDER (S.F.), Aug. 6, 2007, at 1 ("As firms grow, management positions like chairman or managing partner for operations become full-time jobs, and that hard-earned book of business is almost guaranteed to go by the wayside. Returning to practice means re-establishing connections and finding a way back.").
176. See, e.g., HEINZ ET AL., supra note 136, at 9 (reporting that between 1975 and 1995, the hierarchies from the late nineteenth century were abandoned).
177. See KRONMAN, supra note 135, at 11-52.
178. See id.
179. See id. at 271-314.
180. Id. at 265.
181. Id. at 291 ("The culture of America's large law firms is today more open and equitable than ever before, but at the same time it is less hospitable to the ideal of the lawyer-statesman. It is a freer culture than its predecessor, but also a less elevated one, a meaner culture, less able to sustain a belief in the value of the virtues that the ideal of the lawyer-statesman represents.").
182. GALANTER & PALAY, supra note 134, at 7.
183. Id.
184. Id. at 42.
185. See, e.g., HEINZ ET AL., supra note 136, at 285 ("Although access to electronic communication technology is now essential to an efficient and effective law practice, that technology is not so expensive that large numbers of lawyers must share it in order to make it a sensible investment. . . . The 1995 Chicago survey found that 89 percent of solo practitioners and 98 percent of respondents in firms with two to four lawyers had access to computers . . . ."). Recall also that a staple of law firm computing magazines is the ability of smaller firms to use computer technology.
186. See supra text accompanying notes 20-23.
187. See HEINZ ET AL., supra note 136, at 180 (quoting Louis Brandeis, writing in 1905);
188. see also id. at 256 (noting that John Dos Passos, Sr. wrote in 1907 that the great age of the American bar was just before the Civil War).
189. See, e.g., Deborah R. Hensler, Resolving Mass Toxic Torts: Myths and Realities, 1989 U. ILL. L. REV. 89, 92-97 (describing research showing that most tort plaintiffs find that they have very limited control over "their" lawyers).
190. HEINZ ET AL., supra note 136, at 115.
191. See, e.g., Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 61-62 (1983) (arguing that concern about a "litigation explosion" has emanated from a narrow elite of federal judges, law professors, and large-firm practitioners).
192. HEINZ ET AL., supra note 136, at 98-139.
193. Id. at 142 (revealing that in 1975, 17% of lawyers got their first job with a firm of more than ten lawyers, while in 1995, 39% of lawyers did so).
194. Aric Press, Good Times: For Associates, but Not for Firms Who Need More of Them, RECORDER (S.F.), Aug. 3, 2007, at 1 ("According to our survey of summer associate hires, Am Law 200 firms expect to bring on roughly 10,000 associates next fall. That astonishing number equals about one-quarter of all the students who will graduate from U.S. law schools next year.").
195. See FREDERICK LEWIS ALLEN, THE BIG CHANGE: AMERICA TRANSFORMS ITSELF, 1900-1950 (1952).
196. Id. at 121 (referring to how the automobile "progressively transformed American communities and daily living habits and ideas throughout the half century").
197. See CLAUDE S. FISCHER, AMERICA CALLING: THE SOCIAL HISTORY OF THE TELEPHONE TO 1940, at 222-54 (1992).
198. See id.
199. Id. at 260.
200. Id. at 259.
201. Id. at 41-42.
202. Id. at 78-80.
203. Id. at 99.
204. Id. at 224.
205. Id. at 239.
206. Id. at 267.
207. LING, supra note 7, at 3.
208. Id. at 186.
209. See Cats, Mice, and Handsets, ECONOMIST, Dec. 1, 2007, at 74, 74 ("[F]or pioneers of mobile telephony and texts as tools of protest and dissent, simply summoning people to demonstrations - a technique first deployed in the Philippines as long ago as 2001 - is old hat").
210. LING, supra note 7, at 176.
211. Id. at 175.
212. See ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000) (describing the decline of a variety of social and community-based institutions - such as the bowling club - that could be supplanted in an age in which the Internet facilitated individual interaction in cyberspace).
213. See LING, supra note 7, at 179.
214. See CASS SUNSTEIN, REPUBLIC.COM (2001) (bemoaning the extent to which the Internet permits people to avoid divergent views).
215. LING, supra note 7, at 176.
216. Id. at 184.
217. FISCHER, supra note 163, at 176;
218. cf. Michael A. McCann, Message Deleted? Resolving Physician-Patient E-Mail Through Contract Law, 5 YALE J.L. & TECH. 103, 104 (2002) (asserting that the doctor-patient relation "has remained largely intact over the past 2500 years" but that "[r]ecent advancements in technology . . . may test its rigidity").
219. See, e.g., Erin Allday, Online Visits a Boon for Far-Off Patients, S.F. CHRON., May 27, 2007, at B1 (describing online consultations between patients and doctors and asserting that "doctors and hospitals increasingly rely on online technology to meet patient needs outside their traditional coverage area").
220. See CAL. BUS. & PROF. CODE § 2290.5 (West 2008) (detailing the consent required before such treatment is provided).
221. See McCann, supra note 183, at 105. European doctors are reportedly using information technology more frequently in primary care than U.S. doctors.
222. See James G. Anderson, Social, Ethical and Legal Barriers to E-Health, 76 INT'L J. MED. INFORMATICS 480, 481 (2007).
223. See Robert G. Brooks & Nir Menachemi, Physicians ' Use of Email with Patients: Factors Influencing Electronic Communication and Adherence to Best Practices, 8 J. MED. INTERNET RES. e2 (2006), http://www.jmir.org/2006/1/e2/ (reporting that only 16.6% of Florida doctors surveyed used email for patient communications).
224. See Jessica E. Vascellaro, Social Networking Goes Professional, WALL. ST. J., Aug. 28, 2007, at Dl (describing a "social-networking site for licensed physicians" that 25,000 doctors visit regularly and use to consult with colleagues in dealing with challenging patient problems).
225. See Dinah Wisenberg Brin, E-Prescribing May Grow as Industry Makes a Push, WALL ST. J., June 27, 2007, at B5A (quoting Chairman of Walgreen Co.).
226. See Hageseth v. Superior Court, 59 Cal. Rptr. 3d 385 (Cal. Ct App. 2007) (holding that California court could exercise jurisdiction).
227. See supra text accompanying notes 145-149 (describing Dean Kronman's lament about the declining importance of "wise counsel" by lawyers).
228. See supra text accompanying note ‡‡.
229. See SUSSKIND, supra note ‡‡, at 29, 45-46.
230. I intend to pursue these issues further in Richard L. Marcus, The Electronic Lawyer, 58 DEPAUL L. REV. (forthcoming 2008).
231. See generally JEROME GROOPMAN, HOW DOCTORS THINK (2007).
232. See Logical Endings, ECONOMIST, Mar. 17, 2007, at 85, 85 (describing the 1947 suggestion by Theodore Sarbin that doctors are really just machines that make actuarial judgments about the best treatment and suggesting that computers might do a better job).
233. See id. (describing a computer program that produced "almost identical" results to those from the patient's kin and reporting the designer's optimism that he can improve the program so that it will do considerably better).
234. See supra note 21 (describing the monthly magazine Law Office Computing).
235. See supra text accompanying notes 192-194 (regarding the possibility of the demise of "intermediation" provided by lawyers).
236. Jerome P. Kassirer, A Report Card on Computer-Assisted Diagnosis-The Grade: C, 330 NEW ENG. J. MED. 1824, 1824 (1994);
237. see also Kenneth I. Shine, The Physician as Health Agent, 729 ANNALS N.Y. ACAD. SCI. 73 (1994) (describing the growing importance of technology for medical treatment during the twentieth century and finding that "[t]he physician became a purveyor of technology," a process that has accelerated since 1980).
238. James G. Anderson & Stephen J. Jay, The Social Impact of Computer Technology on Physicians, COMPUTERS & SOC'Y, Oct. 1990, at 28, 28.
239. Russell C. Coile, Jr., The Digital Transformation of Healthcare, PHYSICIAN EXECUTIVE, Jan.-Feb. 2000, at 8, 8.
240. Thomas Bodenheimer & Kevin Grambach, Electronic Technology: A Spark to Revitalize Primary Care?, 290 JAMA 259, 259 (2003).
241. Shou Ling Leong et al., Enhancing Doctor-Patient Communication Using Email: A Pilot Study, 18 J. AM. BOARD FAM. PRAC. 180, 180 (2005).
242. David W. Bates & Atui A. Gawande, Improving Safety with Information Technology, 348 NEW ENG. J. MED. 2526, 2526 (2003).
243. David Blumenthal, Doctors in a Wired World: Can Professionalism Survive Connectivity?, 80 MILBANK Q. 525, 526 (2002).
244. See id. at 543-44 ("The profession of medicine, therefore, does not seem headed for extinction-like some quaint species of the era between Hippocrates and Gates. Supported by humanity's need for a healing class and by physicians' genuine technical competence, the profession will survive. However, the work it does will likely change somewhat, as will its role in society and the relationships between doctors and patients.").
245. David Blumenthal & John P. Glaser, Information Technology Comes to Medicine, 356 NEW ENG. J. MED. 2527, 2527 (2007).
246. See Thomas Goetz, Op-Ed., Physician, Upgrade Thyself, N.Y. TIMES, May 30, 2007, at A21.
247. See Todd Lewan, Animal Studies Raise Microchip Suspicions, CHI. TRIB., Sept. 16, 2007, at Q6 (describing studies suggesting that such implanted chips had "induced" malignant tumors in some lab mice and rats).
248. See, e.g., Robert Pear, Warnings Over Privacy of U.S. Health Network, N.Y. TIMES, Feb. 18, 2007, at A22 (describing resistance to efforts by the Bush Administration to promote use of computer networks for access). Consider the following views: As the health-care industry embraces electronic record-keeping, millions of pages of old documents are being scanned into computers across the country. The goal is to make patient records more complete and readily available for diagnosis, treatment and claims-payment purposes. But the move has kindled patient concern about who might gain access to sensitive medical files-data that can now be transmitted with the click of a computer mouse.
249. Theo Francis, Medical Dilemma: Spread of Records Stirs Patient Fears of Privacy Erosion, WALL ST. J., Dec. 26, 2006, at A1.
250. See, e.g., Susan E. Hauser et al., Using Wireless Handheld Computers to Seek Information at the Point of Care: An Evaluation by Clinicians, 14 J. AM. MED. INFORMATICS ASS'N 807 (2007) (reporting that handheld computers with Internet access are useful tools for providing patient advice in real time);
251. Claire Honeybourne et al., Knowledge in the Palm of Your Hands: PDAs in the Clinical Setting, 23 HEALTH INFO. & LIBR. J. 51 (2006) (reporting that a handheld device can provide critical information);
252. Dimitris A. Kalogeropoulos et al., Towards Knowledge-Based Systems in Clinical Practice: Development of an Integrated Clinical Information and Knowledge Management Support System, 72 COMPUTER METHODS & PROGRAMS BIOMEDICINE 65 (2003) (endorsing the introduction of computer-based medical data processing into routine clinical practice).
253. See supra Part IV.A.
254. See David Mechanic, Physician Discontent: Challenges and Opportunities, 290 JAMA 941, 941 (2003) ("Surveys suggest, however, that nurses, dentists, and lawyers are no more satisfied, and perhaps are more dissatisfied, than physicians.").
255. See Milt Freudenheim, Digital Rx: Take Two Aspirins and E-Mail Me in the Morning, N.Y. TIMES, Mar. 2, 2005, at Al. Compare this with Professor Fischer's report that in the early twentieth century, doctors worried about their ability to be paid for patient advice they provided over the telephone.
256. See supra note 183 and accompanying text.
257. Thus, Dr. Mechanic concludes: [S]ome of the stresses experienced by physicians and other professional groups reflect a global economy, the influence of mass and instant communication, the accessibility of information, and the growing legal and ethical complexity of new organizational arrangements and public transactions. While physicians commonly attribute their discontent to managed care, the cultural, ideological, technological, and economic changes apparent in modern societies are increasingly challenging traditional assumptions of medical practice and require rethinking of practice approaches.
258. Mechanic, supra note 214, at 942.
259. In the same vein, see David St. Clair, The Truth About Managed Care Decisions, HEALTH MGMT. TECH., Feb. 2000, at 30, 30 ("The myth of 'faceless bureaucrats' and 'accountants' vetoing doctors' care decisions is just that - a myth.").
260. See Robert B. Klint, A Dance in Anger: Physician Responses to Changes in Practice, PHYSICIAN EXECUTIVE, Mar-Apr. 1999, at 18, 19 (reporting on a 1991 study showing that when HMO market share doubled, doctors worked slightly fewer annual hours and saw 13.7% fewer patients per week).
261. See Mario Stefanelli, The Socio-Organizational Age of Artificial Intelligence in Medicine, 23 ARTIFICIAL INTELLIGENCE MED. 25, 25 (2001).
262. On this score, consider the TV ads by pharmaceutical companies designed to prompt patients to ask their doctors for certain prescription medicines.
263. See DAVID EDGERTON, THE SHOCK OF THE OLD: TECHNOLOGY AND GLOBAL HISTORY SINCE 1900 (2007) (arguing that pre-twentieth-century technology was more important to the outcome of wars and other major events during the twentieth century than the new technology of the age).
264. See, e.g., JOHN L. CAMPBELL, INSTITUTIONAL CHANGE AND GLOBALIZATION (2004) (exploring methods of characterizing changes due to increased globalization).
265. LING, supra note 7, at 172.
266. See RAY KURZWEIL, THE AGE OF SPIRITUAL MACHINES: WHEN COMPUTERS EXCEED HUMAN INTELLIGENCE (1999).
267. See Association for the Advancement of Artificial Intelligence, AI Topics, http://www.aaai.org/aitopics/pmwiki/pmwiki.php/AITopics/HomePage (last visited Apr. 9, 2008) (quoting Eric Horvitz).
268. Flood, Famine and Mobile Phones, ECONOMIST, July 28, 2007, at 61, 61 (quoting a representative of the World Food Programme, a U.N. body that is the single largest distributor of food aid).
269. Do Not Ask or Do Not Answer?, ECONOMIST, Aug. 25, 2007, at 69, 69.
270. David Owen, The Anti-Gravity Men, NEW YORKER, June 25, 2007, at 72.
271. Frank Rich, Op-Ed., He Got Out While the Getting Was Good, N.Y. TIMES, Aug. 19, 2007, at Week in Review 10. The argument is that YouTube undermines a politician's ability to rigidly control the message - a Rove specialty - so that Rove's direct mail method will no longer work.
272. See also Jackie Calmes, Paul Grabs Attention of Alienated Voters, WALL ST. J., Aug. 31, 2007, at A4 (reporting that presidential candidate Ron Paul's use of the Internet is "redefining what a grass-roots campaign looks like").
273. Less conventional political activity also has been altered by the Internet. See Noam Cohen, Doorstep Protest: Very Real, Very Virtual, N.Y. TIMES, Nov. 26, 2007, at C3 (describing a demonstration outside the New York City apartment of a business executive associated with a company involved in animal testing; the campaign to protest at the homes of supposedly responsible executives is managed by a website, which the woman who runs the organization Win Animal Rights says is "the great equalizer" because it allows organizations like hers to reach supporters and organize such protests);
274. see also Cats, Mice and Handsets, supra note 175, at 74 ("[F]or pioneers of mobile telephony and texts as tools of protest and dissent, simply summoning people to demonstrations - a technique first deployed in the Philippines as long ago as 2001 - is old hat. The search is on for even more creative ways to use this ubiquitous device.").
275. See Stephanie Simon, Penitents Turning to Web Instead of Confessionals, S.F. CHRON., Sept. 2, 2007, at A2.
276. See Bruce Lambert, As Prostitutes Turn to Craigslist, Law Enforcement Takes Notice, N.Y. TIMES, Sept. 5, 2007, at A1.
277. Nicholas Lemann, Tune In Yesterday, NEW YORKER, Apr. 30, 2007, at 80.
278. Ezra Dodd Church, Note, Technological Conservatism: How Information Technology Prevents the Law from Changing, 83 TEX. L. REV. 561, 561 (2004).
279. See George A. Davidson, Who Killed the Civil Trial?, N.Y.L.J. MAG., Sept. 2007.
280. John Tredennick, Outsourcing for the Small Law Office, TRIAL, Mar. 2007, at 58, 59.
281. See supra text accompanying notes 20-40.
282. See supra text accompanying notes 89-120.
283. See supra text accompanying notes 192-194.
284. See supra text accompanying notes 9-19.
285. See supra text accompanying notes 65-88.
286. See supra text accompanying notes 121-133.
287. See supra text accompanying notes 134-160.
288. See supra text accompanying notes 183-219.