{"id":439,"date":"2005-12-30T20:59:18","date_gmt":"2005-12-31T01:59:18","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=439"},"modified":"2010-11-26T00:35:48","modified_gmt":"2010-11-26T05:35:48","slug":"foreboding-in-the-law-library-of-achilles","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=439","title":{"rendered":"Foreboding in the Law Library of Achilles"},"content":{"rendered":"
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Foreboding in the Law Library of Achilles<\/h2>\n

\u00a0Published in the Maryland Daily Record December 30, 2005\u00a0<\/p>\n

First fashioned he a shield, great and sturdy, adorning it cunningly in every part, and round about it set a bright rim…\u00a0 and on it he wrought many curious devices with cunning skill.\u00a0 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 …<\/em>\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 With these words (from Samuel Butler\u2019s translation of The Iliad<\/em>) the poet Homer begins a lengthy description of the shield the blacksmith god Hephaestus crafted for the Greek champion Achilles.\u00a0 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.\u00a0 No soldier, be he ever so doughty, could have carried it.\u00a0 The shield is a metaphor, virtually, for encyclopedic attention to everything worthy of consideration.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Maybe Bronze Age Hellenic warriors could not have actually carried around a representation of everything.\u00a0 But we in the Silicon Age increasingly can and do.\u00a0 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.\u00a0 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\u2019 Shield is not an idle comparison.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 We in the legal profession have witnessed the fashioning of our own Achilles\u2019 Shield.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.\u00a0 The books are still published, but have become far less widely purchased.\u00a0 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.\u00a0 And we do not own Westlaw or LEXIS; we only rent them.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Why the sea change?\u00a0 Why would we give up personal ownership of such vital resources?\u00a0\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Those of us who can remember all-paper research know that it truly had its charms.\u00a0 And within recent memory the on-line resources were neither complete nor reliable enough to make on-line research the only research we did.\u00a0 It was in that era that the phrase \u201ccomputer-assisted legal research\u201d a\/k\/a \u201cCALR,\u201d was coined.\u00a0 \u201cAssisted\u201d was all we could hope for, if we were being careful.\u00a0 Only slapdash practitioners relied just on the computer, in fact such reliance was a hallmark of sloppy, jejune research.\u00a0 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.\u00a0 The moment came when it was possible to be careful and thorough and still never leave a keyboard and monitor.\u00a0 The moment also came, probably the same moment, when it became palpably more convenient never to leave the keyboard and monitor.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 That was the tipping point.\u00a0 Suddenly, the disadvantages of paper sources stood out.\u00a0 Books were bulky, expensive and time-consuming to maintain.\u00a0 By contrast, on-line law libraries were eminently accessible, maintenance-free, and not such a terrible deal financially.\u00a0 And compiling a rentable library was completely feasible.\u00a0 Unlike the myriad unique and idiosyncratic personal musical odysseys chronicled in our respective iPods, there is basically one universal law library.\u00a0 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.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Moreover \u2013 and here is the Shield of Achilles part \u2013 the entire universal law library can be accessed through any laptop.\u00a0 Arm your laptop with wi-fi or plug it into your firm\u2019s Ethernet wall-port, and you have it: the equivalent of most of the items you would find in the best-equipped law library.\u00a0 And no need to forego the paper you still want: if you possess a printer you can print out what you want.\u00a0 The new, totally portable Shield can make fearsomely equipped legal warriors of us all, wherever.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 All problems solved?\u00a0 Happy ending?\u00a0 One hopes so.\u00a0 There is another legend about Achilles to bear in mind, though.\u00a0 He was supposedly invincible.\u00a0 His mother, the nymph Thetis, had dipped him in the River Styx, and wherever the waters had touched Achilles\u2019 body, he could not be wounded.\u00a0 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.\u00a0 Her fingers closed around Achilles\u2019 heel.\u00a0 And the heel from which he was suspended thus did not come in contact with the Styx.\u00a0 Leading to no great suspense as to which part of his body Achilles later took a fatal wound.\u00a0 It is axiomatic that every system has an Achilles heel.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 And here the heel could be centralization.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 When we rent our resources from electronic vendors, the physical system atrophies.\u00a0 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.\u00a0 Ask any law librarian about the brutal way the laws of supply and demand are playing out in the pricing of paper resources.\u00a0 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.\u00a0 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.\u00a0 There is only one possible outcome: the end of most law books as we know them.\u00a0 The next generation will see this resource disappear, and the disappearance or radical transformation of the law library system.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 When that process is complete, all the information we lawyers rely upon will be held by a small circle of electronic vendors.\u00a0 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.\u00a0 These few vendors, proprietors of a few banks of spinning disks in Minnesota and Ohio, are becoming the holders of our memory.\u00a0 And for the law, as we all know, memory is crucial.\u00a0 Without memory, there is no stare decisis and no precedent, no judgments to which faith and credit is accorded.\u00a0\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Think about the media involved.\u00a0 What do we really know about their security?\u00a0 I asked representatives of Westlaw and LEXIS about this.\u00a0 Westlaw, it turns out, parks its data on six redundant servers, but four of them are within a half mile of each other.\u00a0 Westlaw also has off-site storage of backups.\u00a0 LEXIS keeps it data at two redundant centers, 45 miles apart.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What if there were a war?\u00a0 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.\u00a0 One bomb could apparently take out 4 of Westlaw\u2019s 6 servers.[1]\u00a0 One bomb\u2019s pulse, covering the 45 miles between the centers, might be able to take out LEXIS altogether.[2]\u00a0 And by \u201cout\u201d I mean out forever, as in totally erased.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There could also be vulnerability to sabotage, either by hacker targeting or as collateral damage to some kind of computer virus.\u00a0 Of course hacking is nothing new.\u00a0 LEXIS says that so far as it knows no hacker has ever succeeded in penetrating or tampering with its legal databases.\u00a0 (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.)\u00a0 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.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The irreducible dilemma with any such enterprise, be it library or Google, is that centralized data is vulnerable.\u00a0 The great library at Alexandria was a marvelous and indeed indispensable thing — until it burned.\u00a0 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\u2019 successors in the field of American law, the West folks in Minnesota, engorge and process each new addition to the agreed legal canon.\u00a0 But centralizing all that information also magnified its exposure.\u00a0 We know the titles of many books that did not make it down through time to us because they were \u201cpreserved\u201d in just such a fashion at Alexandria.\u00a0 It was all in one place, and hence it was all susceptible to being burned in one fire.\u00a0 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?\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 We shall find out, because we have no realistic alternative.\u00a0 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.\u00a0 And let\u2019s be fair: paper records don\u2019t have a great survival rate either.\u00a0 Yes, there are the still surviving British parchment parliamentary rolls that chronicled events like the deposing of Richard II in 1399.\u00a0 But good luck trying to find U.S. servicemen\u2019s records from World War II, most of which were lost in the 1973 fire at the federal repository in St. Louis.\u00a0 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.\u00a0 Paper has been a wonderful way of preserving redundantly distributed data, like official court reports, but a mediocre way of preserving unique data.\u00a0 Misfiling, de-accessioning, bookworms, and fire and flood take their toll on unique information captured in paper form.\u00a0 And these days, the name of the game is preserving everything, including the unique data.\u00a0 And for that you need an Achilles\u2019 Shield.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But it has, or should have, a necessary implication.\u00a0 The preservation of our legal memory is a national priority, right up with everything else our homeland security apparatus supposedly protects.\u00a0 Insufficient attention has been paid to the implications of the centralization of that whole memory in the hands of a few.\u00a0 It is simply too important a matter to leave completely unregulated.\u00a0 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.\u00a0 How safe is it?\u00a0 We don\u2019t 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.\u00a0 We need to set some standards, and make sure they\u2019re observed.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In short, the direction of the enterprise for preserving and accessing our legal history is clear.\u00a0 But the safety of the enterprise is not clear at all.\u00a0 And that lack of clarity should not be acceptable.\u00a0 We need to know.\u00a0<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 After Achilles was slain, his shield and armor were kept safe.\u00a0 Odysseus, recognizing their value, competed with Ajax for them, and won the inheritance.\u00a0 Ajax, cognizant of what he had lost, went mad and slew himself.\u00a0 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.\u00a0 Do we?\u00a0<\/p>\n

\u00a0<\/p>\n

[1]\u00a0\u00a0 The Air Force seems to have\u00a0taken down\u00a0my source for this conclusion: http:\/\/www.airpower.maxwell.af.mil\/airchronicles\/kopp\/apjemp.html<\/a> ,\u00a0<\/p>\n

[2] \u201cIn 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.\u201d\u00a0<\/p>\n

\u2013 Testimony of George Ullrich<\/a>, the Deputy Director of the Defense Special Weapons Agency, HR Comm. \u00a0on National Security, July 6, 1997.\u00a0\u00a0<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

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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\u2019 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 \u201cpreserved\u201d in just such a fashion at Alexandria.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[500,511,524,514,508,507,498,525,521,502,503,495,496,504,506,497,515,526,523,518,516,517,519,499,512,501,522,509,510,520,513,505],"class_list":["post-439","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-achilles","tag-achilles-heel","tag-ajax","tag-alexandria","tag-calr","tag-computer-assisted-legal-research","tag-computerized-records","tag-eagan","tag-federal-repository","tag-hephaestus","tag-homer","tag-information-preservation","tag-information-retrieval","tag-ipod","tag-lexis","tag-libraries","tag-library-at-alexandria","tag-minnesota","tag-odysseus","tag-parliamentary-rolls","tag-ptolemies","tag-richard-ii","tag-rotuli-parliamentorum","tag-samuel-butler","tag-server-banks","tag-shield-of-achilles","tag-st-louis","tag-styx","tag-thetis","tag-us-servicemens-records","tag-vulnerability-of-servers-to-nuclear-attack","tag-westlaw"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/439","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=439"}],"version-history":[{"count":13,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/439\/revisions"}],"predecessor-version":[{"id":441,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/439\/revisions\/441"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=439"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=439"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=439"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}