This Article seeks to strengthen the case for the academy and the legal profession to pay heed to the consequences of the shift to electronic research, primarily by employing cognitive psychology to guide predictions about the impacts of the shift and, thereby, address a perceived credibility gap. This credibility gap arises from the difficulty and imprecision in postulating how changes in the research process translate into changes in researcher behavior and research outcomes. Applying principles of cognitive psychology to compare the print and electronic research processes provides an analytical basis for connecting changes in the research process with changes in researcher behavior and research outcomes.
Cognitive psychology generates two specific predictions about how electronic research will change the law. First, electronic research will lead to increased diversity in framing -- divergence in the selection of the legal theory or theories through which to conceptualize facts, arguments, and cases. Second, electronic research will lead to more tilting at windmills -- the advancement of marginal cases, theories, and arguments. The Article explores how an increase in diversity in framing and tilting at windmills could affect the legal profession and the law. For example, in an adversarial system, judicial options for case resolution are largely defined and constrained by the theories proffered by counsel. Diversity in framing could expand judicial authority by providing judges with a wider variety of options for dispute resolution. This underlines the way in which counsel serve as gatekeepers by exercising judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require recalibration of the existing limits placed on lawyers in their role as gatekeepers. Recalibration may be necessary to prevent the dedication of client and judicial resources to lost causes spurred by lapses in judgment related to electronic research and to allow attorneys to advance, without fear of sanctions, thoughtful arguments designed to push doctrinal boundaries.
Specifically, Part II reviews existing legal theory, scholarship, and data that suggest that the shift to electronic research will likely have broad-ranging impacts. Part III compares print and electronic research and discusses three particularly salient changes in research process: (1) electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) electronic researchers are exposed to more and different case texts than print researchers. Part IV uses principles of cognitive psychology to examine these process differences and predict two major non-process consequences of the shift to electronic research: increased diversity in framing and tilting at windmills. Part V concludes by assessing the broader significance of these hypothesized consequences.
Katrina Fischer Kuh, Electronically Manufactured Law, 22 Harv. J.L. & Tech. 223 (2008), http://digitalcommons.pace.edu/lawfaculty/1057/.