Practicing lawyers and law schools are in the early stages of a revolution driven by the forces of globalization and information technology.
Our roles in the 21st Century will be determined by the clarity of our vision in understanding these revolutionary forces and our entrepreneurial creativity in adapting to them.
Information technology in the form of the Internet and the World Wide Web is a revolutionary force because it provides a new marketplace for the exchange of goods and services – and a new political forum for mass democracy. In this new marketplace, economic barriers to entry are much lower than they ever have been before. One can set up a Web site for the price of a $3,000 computer and a $19-per-month Internet connection, compared to tens of thousands of dollars to set up a physical storefront, hundreds of thousands of dollars to operate a printing press, and millions of dollars to operate a television transmitter. These low barriers to entry mean that small enterprises, including small law firms, have access to markets they never could reach before. And the Internet’s low transaction costs make it possible for these small enterprises to engage in low-value transactions and still make a profit.
The Internet also is inherently global. A Web page published in Illinois is as visible in Kiev as it is in Kankakee. All Internet markets are global, and special steps must taken to restrict electronic commerce on the Internet to local or regional market areas. This characteristic of the Internet strains traditional concepts of jurisdiction, which still are based on the geographic boundaries of traditional sovereigns, even as they have adapted through the centuries to ocean borne commerce, civil aviation, the telegraph and telephone, and radio and television.
Does the state of Texas have jurisdiction to regulate lawyers in Boston who put up a Web site as visible to clients in Lubbock as in Lawrence? Is an Illinois corporation offering to sell its securities on the Web subject to the jurisdiction of securities regulators in Australia? Must a manufacturer who publishes his catalog and price list on a Web server in Wheaton be prepared to litigate products liability suits in Wales?
Whenever revolutions change the contours of markets, questions arise as to who will be the victims and the victors of new forms of competition. Lawyers, like securities exchanges, newspapers, and retail merchants, are intermediaries, and new market forms always give rise to new kinds of intermediation. Traditional intermediaries have a poor track record in adapting to change. As often as not, new players, rather than old, have the vision and entrepreneurial creativity to respond to new demands. It was Microsoft, and not IBM, DEC, or Unisys, that drove the PC revolution. It was Netscape and not Microsoft that drove the World Wide Web revolution. It was Amazon.com and not Borders Books that drove the e-commerce of retailing. It is Ebay and not Sootheby’s that has proven the viability of Internet based auctions.
Who will exploit the Internet’s potential to improve access to legal services? Will it be Baker & McKenzie, Skadden Arps, and Morgan, Lewis & Bockius, or will it be some kids in the Silicon Valley who write software for designing wills and licensing agreements or electronic links for direct client access to courts and agencies? Who will meet the needs of e-commerce enterprises for advice and representation on new issues of jurisdiction, tort liability, and contracting as they move to the new electronic marketplace? Will it be today’s law firms or a handful of world wide public accounting firms providing a package of legal, technology, and strategic business services.
Who will educate lawyers to plan enterprises and resolve disputes in new electronic markets and global electronic political arenas? Will it be Kingsfield in a first year Socratic classroom or will it be Concord.com law school providing legal education through Web based video, audio, and competency testing?
As practitioners and professors of law, we have control over how these questions will be answered.
As practitioners, we must understand the new marketplace and political arena. We need not know how to program in C++ or Java but we must understand the basic architecture of the Internet and the World Wide Web. We need not all become specialists in international law, but we must become more sensitive to the basic concepts of international jurisdiction, differing approaches of different legal cultures, and institutional mechanisms for providing economic security in transnational commerce. What we know about the statute of frauds, income taxation, liability of retailers for defective products, and business organizations has not become obsolete, but our knowledge of basic principles must be sufficiently deep that we can adapt them to the demands of new markets and new forms of client interaction.
We must take advantage of new ways of practicing law. Courts and administrative agencies around the world are rushing to adopt electronic dockets and electronic filing systems and to allow presentation of testimony through video technology. We must remain ready to represent our clients with these new forms of advocacy, while remaining faithful to the core principles of the Rules of Professional Conduct. Important barriers to client access to legal services arise from search costs and the transaction costs of face to face meetings. We must be aggressive in helping our clients find us, request our services, enter into fee agreements, and engage in some forms of lawyer-client conversation over the Web. The seamless range of legal services available through visanow.com should become the conceptual starting point for the way we practice law; not a curiosity confined to a specialized practice area.
Law professors can no more afford to sit back and defend tradition than can practitioners. While we should not rush to replace the Socratic classroom with electronic correspondence courses for law students, we must think more deeply about the learning to think like a lawyer in a three year brick and mortar law school. We must consider carefully how new video, audio, and programmed instruction delivered through the Internet can enrich the educational experience, not only for traditional law students in our geographic market areas but also for new kinds of law students around the world. We must be willing to consider what legal education would look like if we relaxed the constraints of the 50 minute law class and the 13 week semester, redesigning some courses so they comprise short periods of intensive interpersonal interaction stitched together with longer periods of remote electronic interaction.
Chicago-Kent is proud of its track record in helping law students and practitioners cope with the forces of change. As the first law school in the United States to take seriously the impact of small computers on the American legal system, we now are hosting the ABA’s Internet Jurisdiction Project, which is helping the legal profession understand the jurisdictional challenges of global electronic consumer transactions, sale of securities, taxation, and privacy. With support from the Soros organization, we are developing new ideas to use information technology to enhance access to legal services by people of low and moderate income. We have worked with the Federal Reserve Bank of Chicago to inform leaders of the financial services industry how they can develop electronic payment systems suitable for Internet based electronic commerce. We are leading the effort to understand how distance learning can enhance legal education, testing the effectiveness of different technology applications, ranging from interactive video to Web based tutorials in more than 20 courses. Our faculty is helping people think about how secured transaction law works when the relevant assets are communications satellites orbiting 22,000 miles above the earth. With the support of the MacArthur Foundation, we are tying together diverse organizations in Chicago interested in international relations.
In all of these efforts, we are faithful to our tradition of combining cutting edge thinking based on faculty scholarship to practice-oriented professional education. Our students do not simply watch and listen in the classroom; they are working with us to evaluate distance learning experiments; they are actually building Web pages to deliver legal information and services; they are actually working on the ground in Bosnia, Kosovo, Albania, Macedonia, Poland, the Ukraine and China to build new legal systems around Internet-connected resources, under the sponsorship of the United States Information Agency, the World Bank, the Soros organization, and others.
We welcome everyone’s participation in this partnership to assure that American lawyers continue to lead the global extension of democracy, rule of law, and open markets.
Henry H. Perritt, Jr. is currently Dean and Professor of Law, Chicago-Kent College of Law, and Vice President–Downtown Campus, Illinois Institute of Technology. He received his Bachelor and Masters Degrees from MIT (S.B. 1966, S.M. 1970.) He received his Law Dregree from Georgetown in 1975.