Information Technology & Lawyers Edited by: Arno R. Lodder Anja Oskamp Contributions by: Kevin D. Ashley Trevor J.M. Bench-Capon Marc Lauritsen Arno R. Lodder Anja Oskamp Marie-Francine Moens Henry Prakken Gerald Quirchmayr Andrew Stranieri John Zeleznikow 2 Lodder/Oskamp (eds.), Information Technology & Lawyers TEMPORARY TABLE OF CONTENTS 1. Introduction: Law, Information Technology, and Artificial Intelligence3 2. Case-based Reasoning.................................................................................5 3. Argumentation.............................................................................................5 4. Knowledge Discovery from Legal Databases – using neural networks and data mining to build legal decision support systems...................................5 5. Improving Access To Legal Information: How Drafting Systems Help.5 6. Internet, WWW, and beyond.....................................................................5 7. Artificial Intelligence in the Real Legal Workplace.................................5 8. References....................................................................................................5 1. Introduction: Law, Information Technology, and Artificial Intelligence Anja Oskamp Arno R. Lodder 1.1. Information Technology and Lawyers Information Technology and lawyers, at first sight not the most natural combina- tion one can think of. Information Technology is fast, schematic, and futuristic; lawyers are cautious, verbose, and old-fashioned. When one of the authors once told a chemist he was working in the field of IT & Law, the first reaction was: “Is there any connection between the two at all?” This was back in 1995. The influ- ence of IT and in particular the internet on law has become ever greater since, and also the use of IT and in particular the internet by lawyers (the side of the IT & Law diptych this book focuses on) has increased significantly. Currently there is indeed a connection between IT & Law that is also clear to people outside the field, viz. IT plays a central role in law, legal practice and legal research. The reli- ance on technology has even become so great that one could say the combination Information Technology and lawyers has become a natural one. Not everyone seems to be convinced of the benefits of Information Technology though: “Despite impressive advances, IT still remains prone to error and less easy to use than fixed-line telephones and typewriters, for instance.” This quote seems to originate from 1984, or maybe 1994, and right now it is 2004. Surprisingly, this quote is from Schäfer (2004). First of all, one might doubt the convenience of a typewriter in comparison with modern computing facilities. What the author possibly means to say is that once the ink is on the paper the fixed text normally remains there for years to come. The future of the bits and bytes in any file are less certain. Nonetheless, typewriters have faded away over the last 10 years and it will be quite hard to find a working typewriter in any office, including lawyer’s offices. This was not the case at the beginning of the 1980s when the per- sonal computer appeared. At that time most lawyers were reluctant to switch to electronic media and abided by pen, paper, typewriters and Dictaphones, although in some countries, like the US, databases with precedents were already widely used. In other countries, mostly those with a statutory legal system, this was not the case. In the 1980s only few lawyers might have realized the social impact of Infor- mation Technology in the years to come. About a little over a decade later, at the time most lawyers started to actually use computers for their office work, an ex- tremely influential new phenomenon appeared: the World-Wide Web. Dedicated 4 Lodder/Oskamp (eds.), Information Technology & Lawyers programs such as Mosaic, Netscape and Internet Explorer allowed to easily ‘surf’ from one computer to another following hyperlinks. The large number of com- puters attached to the Net opened up an almost infinite source of legal information for both lawyers and layman. With the increase of the number of legal sources on the internet, clients got the opportunity to establish their position by browsing and searching online legal documentation. Like physicians who are confronted with diagnoses from their patients based on Internet sources, legal professionals often have to spend more time on correcting all the wrong ideas that took shape in the heads of their clients than on analyzing and advising. This illustrates that despite the wealth of legal information, the role of lawyers remains important. 1 Rabino- vich-Einy (2003) rightly observes: “Since human capacity is limited, no matter how much information is disseminated we will have no choice but to rely on others to sort out for us what is relevant and reliable. In fact, it may be that the prodigious and unprecedented supply - some would say oversupply – of information makes the interpretation of experts more necessary, not less.” In addition to making use of all the information available on the Internet, al- most every minute of their working day lawyers, both practitioners and academics, use Information Technology: E-mail for communication, word processors for writ- ing, data bases to retrieve information, and knowledge systems to get support. The latter are still not so often used as was expected 20 years ago, but in some domains they are used on large scale, e.g. in tax law and social welfare law. Already in 1975 the first legal expert system was made public in the UK in the domain of welfare benefits. The system determined the eligibility for benefits and produced a letter of advice to the client. It will be clear already that the field of IT & Law deals with a wide range of topics. This book provides an introduction into and overview of both practical matters and research issues in the field we named in Dutch Informatietechnologie voor juristen (Oskamp & Lodder 1999), which can be loosely translated into In- formation Technology for lawyers . By that term we mean to cover the practical use of IT to support lawyers or others working in the field of law, as well research topics regarding the use of IT in law. This book contains seven chapters including this introductory chapter. A wide range of subjects in the field of IT for lawyers are covered, such as reasoning with cases, document assembly, and Internet and lawyers. The remainder of this chapter is structured as follows. First we shed some fur- ther light on the two sides of IT & Law (1.2), followed by an introduction of some basic concepts that will be used throughout the book (1.3). We continue with a taxonomy of the different types of IT support for lawyers (1.4). Subsequently the domains of Artificial Intelligence (1.5) and AI & Law (1.6) are introduced. Sec- tion 1.7 describes a recent development that brings together the previously mostly 1 Susskind (1998, p. 291-292) defends a somewhat different position. He believes that the future role of lawyers is either to advise in cases of great complexity or to design legal in- formation services. Introduction: Law, Information Technology, and Artificial Intelligence 5 separately studied legal and technical angle of IT & Law: the two areas are con- verging into one topic of research in several current studies. The structure of the book is discussed in section 1.8. 1.2. Information Technology & Law From the perspective of lawyers Information Technology & Law is a young field. It goes back only a few decades. From an IT-perspective, on the other hand, IT & Law is rather old. This observation clarifies the difference between the two disci- plines: the law goes back centuries if not millenniums, 2 while IT did not emerge until the second half of the last century. The legal domain thus knows a long his- tory and tradition in which over time new fields of attention arose, albeit mostly after the industrial revolution. Examples are traffic law, environmental law, and human rights law. Law is a social phenomenon and follows closely changes in so- ciety. IT is largely responsible for recent changes in society. 1.2.1. Information Technology Law The connection between Law and Information Technology is studied in two dif- ferent areas of research. The first branch, Information Technology law, is legally oriented and analyzes legal implications of information technology, remedies legal problems rising from the introduction and use of IT in society. Topics include electronic signatures, computer contracts, copyright on the internet, data protec- tion, and computer crime. The field is interdisciplinary: it stretches out over all classic legal domains, viz. civil law, criminal law, constitutional law and adminis- trative law. This is the side in which lawyers tend to feel most at ease. Their role in the field has been clear from the start and it has been the traditional role: legal embedding of new phenomena. Legal rules are developed to cope with new situa- tions caused by the use of new technologies or existing rules are re-interpreted. Lawyers need to have some understanding of these new technologies, in order to understand the impact of the new technologies and to mold the law in the most suitable way. This is especially the case when those technologies are newly intro- duced. Beside at least awareness of technology, the lawyers in particular have a very thorough knowledge of the (traditional) legal field that is influenced by tech- nology. For example, a criminal background in case of computer crime, a civil background in case of e-commerce law, and a public background in case of elec- 2 Gray 1997 goes back almost three millenniums. She developed a theory on the evolution of a legal system consisting of five stages: ritual, common law, theory, casuistry and codification. She describes all stages of Roman law (8 th Century B.C.-7th Century A.D.), and claims the English system is about to enter the codification phase in which com- puters are central.