Equine considerations and computer law - reflections forty years on: the story of the founding of the world's first academic law journal on the subject of computers and law.
I was eventually persuaded that a stand-alone course or seminar on "computer law" (1) could be justified--and, by extension, that a quality academic journal committed to the subject (2) could prove a worthy addition to the body of legal literature. On the best days I was convinced that the venture would ultimately be validated in the marketplace and that eventually the Journal would be acknowledged in the way all good legal publications are--by citation as persuasive argument or authority in other scholarly journals and in judicial opinions. All this would prove to be the case; but in 1968 and 1969, there were days when this happy result was far from certain.
There were fellow student-critics (though never members of the faculty) who questioned the venture. They argued, in fine law student fashion, that what was proposed had the legitimacy of a law school course in automobile law; in short, limited value at best. The argument was that one cannot learn general legal principles from a study of narrow fact-dependent cases, i.e., those involving computers, computing or software, to the exclusion of the remaining universe of factual contexts. For critics, a law journal focusing on such a limited and proscribed subject would not be destined for success. But, because I strongly believed that the development of the computer over succeeding generations would prove to be at least as significant to society as the automobile, the skepticism did not deter our efforts. My thought at the time was that the computer's ubiquitous penetration of society posed real potential for unanticipated catastrophe as we rushed to rely increasingly on the technology.
THE LAW OF THE HORSE
More than twenty-five years after the "automobile law" criticism, the argument would be invoked again in a more assertive fashion--though I believe ultimately erroneously--at least as it applies to the development of the computer. In 1996, Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit cited the famous refrain of Gerhard Casper, the former dean of the University of Chicago Law School, (3) to argue in effect, that "computer law" as a stand-alone subject should not be credited. The argument was published in an article entitled Cyberspace and the Law of the Horse. (4)
As Judge Easterbrook noted, Dean Casper did not see the benefit in "Law of the Horse" courses (that is, courses then referred to somewhat pejoratively as "Law and ..." courses) unless they were "subjects that could illuminate the entire law." (5) Such specialized courses, especially those that would use a subset of cases based on limited case facts, would not warrant real legitimacy and were "suited to dilettantes." (6) Judge Easterbrook, himself a member of the law faculty at the University of Chicago, summarized Dean Casper's philosophy:
[T]he best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on "The Law of the Horse" is doomed to be shallow and to miss unifying principles.... Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses. (7)
As a result Judge Easterbrook expressed doubt that a course analyzing the intersection of law and computers could be beneficial to legal discourse. According to Judge Easterbrook, if you "[p]ut together two fields about which you know little [you will] get the worst of both worlds.... Beliefs lawyers hold about computers, and predictions they make about new technology are highly likely to be false.... The blind are not good trailblazers." (8)
There is truth in the observations of Dean Casper and Judge Easterbrook. Certainly for law school curricula. But occasionally, a game-changer comes along and the development of the computer, and the trajectory (9) of that development, from the immediate post-World War II period was such a changer.
Just four years after the Easterbrook article was published, Lawrence Lessig, (10) a Harvard law professor, challenged Judge Easterbrook's theory in the aptly titled article, The Law of the Horse: What Cyberlaw Might Teach. (11) In his article, Professor Lessig, argued that the law of cyberspace (and by extension the term we used for the Journal, "computer law") is a unique and a worthy independent subject because the lessons learned from its regulation transcend the boundaries of computers and cyberspace. (12)
Later, we will consider how well the Rutgers Computer and Technology Law Journal did forty years ago both in setting parameters around the subject called "computer law" and in anticipating issues that the advent of the computer would present in all aspects of our lives. Were the Journal's predictions about the new technology inaccurate, or the Journal's predictions about the direction of change worthless, as Judge Easterbrook argued would likely be the case? He was talking about a span of five years; while we are talking about a span of forty.
THE FIRST ROOTS
I came to Rutgers Law School in 1967 and in my first year became a research assistant to Professor Vincent Fiordalisi, who had been the law school's librarian. At that time, much of the research into how computers could aid in legal research was done by law school librarians. Professor Fiordalisi was a member of a small influential group of like-minded law faculty and practitioners from around the country conducting this research. (13)
I had programmed and operated large IBM computers (then the size of very large rooms) beginning in my freshman year at Rutgers College in 1963, while working part-time for the high-energy physics graduate program at Rutgers University. Rutgers was just beginning a Department of Computer Science and my father, a mathematician and statistician-turned-computer scientist, was recruited as a professor. We both came to Rutgers in the same year. (14)
While my undergraduate major was economics I did take several computer science courses and, of course, learned a good deal from my father about computers and programming while growing up. When, as a junior, I decided on law as a career my father introduced me to Professor Fiordalisi at the Rutgers School of Law-Newark. One area in which my father was working was information retrieval in the medical field, but he knew other academics working on the analysis, research and retrieval of legal materials.
My decision to come to Rutgers for law school was based, in large part, on Professor Fiordalisi and the prospect that we could work closely together. By my second year in law school I had helped Professor Fiordalisi conceive a seminar in Computers and Law, and he invited me to help develop the curriculum and even to assist in teaching the course. At that time, we required every student taking the seminar to demonstrate sufficient knowledge of programming so as to conceive, program, and successfully run a computer program (then in the form of a set of punched cards) through the batch processing protocols of the Rutgers University--Newark campus computer center. It proved a popular activity and a welcome diversion from the typical law student's schedule.
THE RUTGERS COMPUTER LAW SOCIETY
During my first year in law school, in 1968, I had the opportunity to assist Professor Fiordalisi with his ABA committee work as a member of the ABA's Special Committee on Electronic Data Retrieval. As part of my work, I attended the national ABA Convention that year and met, for the first time, many of the country's leading academics and private practitioners in the developing field. After attending one of the committee meetings at the convention, it became apparent to me that a university-based academic law journal, focused exclusively on subjects related to computers, technology and law could succeed--not least because I had come to know some of the leaders in the field.
Later that year, the first concrete step toward creating a journal was taken when I started a group called the Rutgers Computer-Law Society (RCLS). The idea was that this group could provide the structure for a computer law journal but without the need to declare a journal's formation which still required a lot of groundwork.
The RCLS "believed to be the first group of its kind in any law school" was formed at Rutgers Law School in 1968 "to study and analyze the relationship between the legal processes and the development of the computer." (15) Those who joined RCLS would be candidates for editorial positions, if and when a computer law journal got off the ground.
THE JOURNAL BEGINS ITS LIFE
One of my tasks while working with Professor Fiordalisi was to define the scope and parameters of this "new" discipline. This endeavor laid the foundation for what would later become the Index and Bibliography on Computers and the Law that has been featured in most issues and every annual volume of the Journal through to the present issue. (16) The Bibliography is a numerical and hierarchical index of all the articles and a selection of judicial opinions published in the previous year on the subject of computers, technology, and the law.
By early 1969, it could fairly be said that the Rutgers Journal of Computers and the Law had been born, though the first issue would not be published until 1970. It would be the world's first academic law journal (17) in the field of computer law, though at the time there were two other publications extant which addressed the subject. One was the Jurimetrics Journal (18) then a publication of a special committee of the ABA and now an on-line journal of the ABA Section on Science & Technology Law and the Sandra Day O'Connor College of Law of Arizona State University. (19) The other, Law and Computer Technology, was published by a group called the World Peace Through Law Center. (20)
When I refer to the Rutgers Journal of Computers and the Law as the first academic journal in the field I am specifically not including publications of bar associations or other professional associations, or international organizations, even though publications of those groups can be noteworthy or even scholarly. (21) The Rutgers Journal of Computers and the Law was at its inception and has been throughout its entire life to date a publication wholly within the academic realm, that is, published by and in a university without any editorial review or control from a non-academic or quasi-governmental organization.
As we formed the Journal fellow students (some from the RCLS) were recruited to become editors; we persuaded Professor Cameron Allen, the law librarian, to provide us with rare office space; and we proceeded to solicit scholarly articles from the leading lights here and abroad. As the article solicitation process got underway, I would sometimes suggest an article subject to prospective authors. If we received a positive response, the name of that proposed article would find itself onto a draft title page for Volume 1 Number 1. To all the world, we had a soon-to-be-published first issue because the draft title page was widely disseminated as part of the subscription solicitation effort. If this was faintly deceptive, it was nonetheless critical, initially, because with few subscriptions in the front door, there were limited funds with which to continue the solicitation of both initial articles and additional subscriptions.
Professor Fiordalisi was always very supportive and helped us with whatever resources we needed. He would run interference for us so we did not have to worry too much about offending the powers that be. After all, at that time the law school was a very active place and the frequent social, political and anti-war demonstrations occurring all around us, usually including members of our student body, were palpable; there was much to divert attention from what we were doing. Many students were attracted to Rutgers Law School at that time because of its national prominence for political activism. Professor Arthur Kinoy and a young Professor Frank Askin offered a Constitutional Litigation Clinic that involved many Rutgers law students in some of the leading civil liberties cases of the day--the defense of the Chicago Seven before Judge Julius J. Hoffman and of Adam Clayton Powell after Congress attempted to deny him his elected seat both come to mind. Computers and the Law didn't command a great deal of attention amongst the student body.
We did recognize that the most likely subscribers were law school libraries, large law firms or corporate legal departments and recognized that if a subscriber wanted the Journal, its cost would not be an obstacle. In economics terms we predicted the Journal would have a low elasticity of demand--a low price would not enhance sales, and a high price would not discourage them. We decided to charge $20 per volume of two issues making us one of the most expensive law journals in the country.
While the Journal's expenses were borne, initially, by contributions from the first editorial board, we could not finance a first issue production run and printer's bill without substantial subscription revenue. We decided that unless we had one hundred subscriptions by Labor Day 1969, the project might need to be abandoned and the money we had received returned. We posted the number of paid subscriptions on the office wall and relished each opportunity to celebrate additions to that number. Eventually we got to ninety-eight with a week or so to go. Just days before our self-imposed deadline, a check arrived from the library of the Central Intelligence Agency (CIA) for three subscriptions, (22) the only multi-subscription order we ever received, putting us over the top. This was known only to a few at the time: it didn't seem prudent to publish this revenue source to a wide law school audience given the breadth of political protest at the law school in 1969 and 1970. Surely we would have extended our "deadline" had we stalled at ninety-eight, but, I was curious about the circumstances surrounding the subscription request and check from the CIA. Was this a coincidence or something more? Coincidence, I'm sure. Eventually we secured more than three hundred subscriptions and were receiving financial support from the Student Bar Association and the Law Alumni Association.
As we were soliciting subscriptions we were also pulling the Journal together. The long hard work of editing (and in some cases completely rewriting) the articles that would comprise the first issue eventually drew to a close. Shortly thereafter, in the Spring of 1970, we took delivery of several hundred freshly printed copies.
As I recall, we provided every student (but maybe it was only the third-year class) a copy. It was well received by the student body and our subscribers.
It became apparent that the Journal was now a law school-recognized publication (23) when the dean asked me to consider turning over our then quite healthy checking account to more formal control; or, at least to adopt a control arrangement that provided the university assurance that monies would be properly spent. We had arrived, I thought. Success in the marketplace can awaken regulatory instincts in those in a position to regulate. Life's lessons come early. In reality, of course, the law school was very supportive, not least by giving us wide berth to succeed or fail on our own. As soon as the first issue was published we started to work on the second issue of the first volume which was finally published in the fall of 1970.
EVALUATING THE EFFORT
The inclusion, in 1970, of a detailed and hierarchical delineation of the field of computer law, in the form of the Index and Selected Bibliography on Computers and the Law, was successful from the beginning. (24) I continued to tweak and fine tune the index categories for an additional two years after graduation. My hope was that future editors would keep this feature because I thought it provided a valuable service to practitioners. So, I was pleased to note the publication in 2009 of the Fortieth Selected Bibliography on Computers, Technology and the Law (25) and observe that the same classification model had been retained, largely unchanged. While new categories have been added, almost all of the original categories remained intact--at least in some form--and remain viable today.
It would be fair for an observer to comment: "But you knew nothing then of the Internet, or the worldwide web, or of the development of the personal computer. How could you have comprehended the potential impact these developments would have if you didn't know about them?"
Well, the Interact had begun, albeit in the form of the Advanced Research Projects Agency Network (ARPANET). Computer networks were starting to proliferate, in part as an adjunct of what was called time-sharing. And while computer utilities and large centralized data banks were common and most computers still took up large air-conditioned rooms, the development of the mini-computer and distributed computing was gaining traction. So, cognizant of computer industry treads, we included categories for Time-Sharing and Remote Access (9.2.1), Information Systems, Retrieval and Data Banks (9.4), Computer Science of the Future (9.5) and Mini-Computers (9.1.2). (26)
The potential for harm also concerned us and we included a category for the social impact of computers (7.1). Section 3.4 made room for several aspects of the privacy concern adjunct to widespread computer adoption by society, including the credit rating industry (3.4.4) and the potential for government (3.4.2) invasion of individual privacy. We also anticipated issues concerning the regulation of computer communications (2.5.1) and the impact computers might have on stock markets and exchange trading in computers, the SEC and stock brokerage houses (4.5).
Few issues today respecting the widespread use of computers, and the problems presented by inadvertence, error, active misapplication, or outright fraud, would fail to find a place in our conception of the field. But, it wasn't just a classification system we devised. We had a specific vision. The first two paragraphs of the Introduction to the journal's first issue remain as relevant today as when they were first published. I well remember writing these words:
There can be little doubt that the computer is rapidly and dramatically changing the character of modem society. It is, therefore, important that the lawyer become better equipped to understand and analyze the growing trend toward automation. He must be constantly informed of technological developments and explore them in the context of social consciousness. Computer scientists must also carefully consider the implications of their activities and fulfill their social responsibilities by gearing those activities to peaceful rather than destructive goals. The miracle of the computer has given mankind the power to make better use of his physical and mental resources. It has likewise, however, given man the dangerous capacity to totally destroy himself. (27)
We then set down our mission as we saw it:
The ... Journal ... is intended to be a scholarly forum for the presentation of outstanding articles treating subjects involving computers, automation and the electronic data processing industry, in their interaction with the law and other social disciplines. Substantial emphasis will be placed on the substantive law implications of computer usage (e.g., torts, legal protection of software, evidence, anti-trust, etc.). Also, such topics as computers in legal research, legal data processing, law office management, computer utilities and time sharing and the social implications of computing, to name a few, will be given extension coverage. (28)
I don't think that mission has changed. Over the years the Journal has been successful at predicting the future of technological development and future impacts and anticipating important issues. In preparing this piece, I had the opportunity to read for the first time in forty years, an article I wrote for the second issue of Volume 1, published in the fall of 1970, and entitled Commercial Banking, and the Checkless Society. (29) The article discussed the trends that could lead to widespread development of electronic payment systems. We know now this is how our economy did develop, but I was gratified when I read my concluding words warning of the dangers from such a change. (30)
On July 27, 1970, shortly after the first issue of the Journal was published, former U.S. Senator Clifford P. Case (R.-N.J.) (31) gave a tribute to the Journal's first editors on the floor of the U.S. Senate. He said: "Mr. President. I wish to commend the initiative of a group of students in Rutgers University Law School who have ... published ... [the] 'Rutgers Journal of Computers and the Law.' ... [T]he first [journal] of its kind." (32)
Senator Case then described the substantive areas we intended the Journal to cover in the future and recited the mission that we saw for the Journal, referred to above. He also talked about an article that appeared in that first issue (33) and how Congress could make effective use of computers to "systemize data." (34) Senator Case concluded his remarks with the following statement: "The editors of the Rutgers Journal of Computers and the Law, who intend to publish similar editions twice each year, deserve congratulations for an important contribution in a field too often neglected." (35)
I often wondered how this tribute came about. It is possible that Professor Fiordalisi urged Senator Case to make the tribute, though I never asked him and he never said. It is also possible--and perhaps more likely--that it came about at the urging of Robert Chartrand, the author of the Journal article that Senator Case referenced in his comments. Chartrand worked at the Legislative Reference Service at the Library of Congress.
Earlier in this article I wrote that after we reviewed how the Journal was formed, we would consider how well we had done, both in delineating the parameters of the subject we then called "computer law," and in identifying the potential issues that could (and by implication would) arise? How did we do in anticipating how the advent of the computer might affect us in the future? Was our work credible or were our predictions about new technology and "its direction of change" "false" or "worthless," as Judge Easterbrook suggested they might be?
I believe that our conception and our commentary hold up. I am not claiming brilliance for, or ascribing great prescience to, that first group of editors.36 I am only saying that we did a creditable job. Our foresight, such as it was, enabled us to do what we did before any other group at any other law school in the world. Our contribution was that our example could, and would, prove to be a model for the development of a whole new class of academic journals. (37)
All in all, I believe we did well.
I want to pay tribute to those who labored with me to make the Journal a reality. Foremost is Professor Vincent Fiordalisi who never wavered in his support of me personally, or of the Computer Law Society, or the Journal: he helped in ways we may never know. I pay tribute, also, to my fellow students who made up that first editorial board and whose labors, support and friendship were instrumental in the production of that first issue. And, finally, I tip my hat to the hundreds of Rutgers Law School students who have been editors of this Journal over the past forty years and, by their hard work and dedication, have kept the Rutgers Computer and Technology Law Journal at the forefront of the field.
(1.) Even the name of the subject, let alone an academic journal based on it, posed a question. Was it to be "Computer Law," "Law and Technology" or something completely different? "Jurimetrics" was a term that was gaining currency in the late 1960s. The words "Cyberspace" and "Cyberlaw" did not exist.
(2.) The original name was the Rutgers Journal of Computers and the Law. In 1976 the name was changed to the Rutgers Journal of Computers, Technology and the Law, and in 2000 it was changed to its present name, the Rutgers Computer and Technology Law Journal.
(3.) Gerhard Casper was dean of the University of Chicago Law School from 1979 to 1987 and President of Stanford University from 1992 to 2000.
(4.) Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207.
(5.) Id. at 207.
(6.) Id. Although Easterbrook defended University of Chicago courses like "Law and Economics, and Law and Literature [because they were] taught by people who could be appointed to the world's top economics and literature departments." Id. at 207.
(7.) Id. at 207-08.
(8.) Id. at 207 (emphasis added). "[W]hat I do know will be outdated in five years (if not five months!); and my predictions about the direction of change are worthless, making any effort to tailor the law to the subject futile." Id. at 208.
(9.) I use "trajectory" of the development of the computer during this period referring to the increasing speed of its rate of development, but I note also a connection of the term to the time when computers were humans, which they were from the time of Galileo to the beginning of World War II. Human computers were people who performed complex iterative mathematical calculations often to determine the ballistic trajectories of artillery shells. By 1940, machines were developed to perform these tasks and this led to the development of the earliest computers in the sense we use the term today.
(10.) Lessig also had been a member of the University of Chicago Law School faculty.
(11.) Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999).
(12.) Id. at 503. Later Judge Richard Posner of the Seventh Circuit and faculty colleague of Judge Easterbrook, perhaps thinking of his former law clerk, Lawrence Lessig, who had left Chicago's law faculty for Harvard's, wryly began his opinion in a case worthy of inclusion in a course on the Law of the Horse with, "[h]orse meat was until recently an accepted part of the American diet--the Harvard Faculty Club served horse-meat steaks until the 1970s." Cavel Int'l, Inc. v. Lisa Madigan, 500 F.3d 551, 551 (7th Cir. 2007) (emphasis added).
(13.) This early group was the Special Committee on Electronic Data Retrieval of the American Bar Association (ABA). It included Professor Fiordalisi; Vincent Biunno of the Newark, New Jersey firm of Lum, Biunno and Tompkins and later a judge for the United States District Court for the District of New Jersey; Reed Lawlor, a patent lawyer; Professor Reed Dickerson formerly of Indiana University School of Law--Bloomington; David Link, a Chicago tax lawyer; Robert Bigelow, in-house counsel at John Hancock Life Insurance Company in Boston; Roy Mersky, University of Texas law professor and librarian; Professor Layman Allen of Yale Law School and later the University of Michigan; Roy Freed who had written the seminal 1960 article, A Lawyer's Guide Through the Computer Maze 7 PRAC. LAW. 15; and Lee Loevinger, who coined the term jurimetrics in a 1949 article, Jurimetrics--The Next Step Forward, 33 MINN. L. REV. 455. I would ultimately recruit three members of this group (Bob Bigelow, Reed Dickerson, and Reed Lawlor) to write articles for publication in the first volume of the Rutgers Journal of Computers and the Law.
(14.) During his time at Rutgers my father, Stanley Baxendale (1909-1998), was both Vice-Chairman and Acting Chairman of the Department of Computer Sciences. He retired as Emeritus Professor of Computer Science in 1978. He knew some of the pioneer computer scientists and at home I heard stories of the development of the earliest computers.
(15.) The 1969 issue of Legacy, the Rutgers Law School's annual year book, includes a photograph of eleven of the then eighteen members of the Rutgers Computer Law Society with the following caption:
"The ... Society was formed in 1968 by ten students to study and analyze the relationship between the legal processes and the development of the computer. RCLS is believed to be the first group of its kind in any law school and at present has 18 members. Membership does not require knowledge of programming or computers. Only a desire to keep abreast of the rapid developments in this dynamic area is required. Most of the members of the RCLS, however, have taken Professor Fiordalisi's seminar on the Law and Computers."
RUTGERS LAW SCHOOL, LEGACY 38 (1969), available at http://lawwiki.rutgers .edu/100years/yb/docs/yb/1969.pdf
(16.) See pp.
(17.) The term, academic law journal (or review), as I use it in this article, denotes the class of law school based, law student edited, and faculty advised publications which publish articles by academics, judges, and practitioners that have reference value; and, which are sometimes cited as persuasive argument and authority by courts. In this way journals of this tradition can influence the development of law. Editorial control with this class of journal remains exclusively within the academic institution. There are also law journals (or reviews) that are published by bar associations or other professional organizations; and there are quality law journals published by commercial enterprises; and while these may have editorial boards consisting of legal practitioners in the field as well as members of law faculties expert in the journal's subject matter, these journals do not fit into the category of "academic law journal" above described--that is, in the sense of a scholarly legal publication produced wholly within "the academy" or law school, and which in the United States would be in the line of publications that began in the second half of the nineteenth century.
Several publications attempt a claim of being the first academic law journal. Some cite the Albany Law School Journal as the "first student-run law journal" having first been published in 1875. It lasted one year. See James W. Harper, Why Student-Run Law Reviews?, 82 MINN. L. REV. 1261, 1263 (1998); Michael I. Swygert & Jon W. Bruce, The Historical Origins, Founding, and Early Development of Student-edited Law Reviews, 36 HASTINGS L.J. 739 (1985). But Albany Law School's own Reference Librarian has written that it "was more in the nature of a student newspaper, and not, in fact, a forerunner of the American law review tradition." He adds "[t]hese historians, however, never actually saw an issue of the Journal; they were unable to locate any copies of the publication. In fact ... no library or any other institution owns even a single issue ..." Robert A. Emery, The Albany Law School Journal: The Only Surviving Copy, 89 LAW LIBR. J. 463 (1997) (emphasis added). Even the Albany Law Review which got off the ground 60 years later acknowledges that the 1875 effort "was not an academic law review in the traditional sense." Albany Law Review, History, http://www.albanylawreview.org/ sub.php?id=10 (last visited Nov. 9, 2010). Columbia Law School's first effort, the Columbia Jurist, came in 1885 but lasted only three years.
The University of Pennsylvania Law Review (founded in 1852 as the American Law Register and student-edited since 1896) is the oldest continuously published legal periodical in the United States and the first journal to take a scholarly approach to legal analysis. Joseph P. Flanagan, Volume 100, 100 U. PA. L. REV. 69 (1951-1952); Edward J. Greenlee, The University of Pennsylvania Law Review: 150 Years of History, 150 U. PA. L. REV. 1875 (2001-2002). The Harvard Law Review, student edited from its inception in 1887 can claim to be the first continuously produced student-edited academic law review in the United States. This type of publication was, until quite recently, a uniquely American form of publication. As Harvard Law School's Dean Erwin Griswold wrote: "Some people are concerned that a major legal periodical [in this case, the Harvard Law Review] in the United States is edited and managed by students. It is an unusual situation, but it started that way, and it developed mightily from its own strength." The Harvard Law Review--Glimpses of Its History as Seen by an Aficionado, in HARVARD LAW REVIEW: CENTENNIAL ALBUM 1 (1987), available at http://www. harvardlawreview.org/hlr_497.php.
(18.) The Jurimetrics Journal's origins go back to 1959 when Yale Law School's Layman Allen undertook to issue a quarterly newsletter for the ABA's Special Committee on Electronic Data Retrieval. Originally called Modern Uses of Logic in Law (MULL), the journal changed its name to Jurimetrics Journal in September 1966. Id. In 1971, the Special Committee became the Standing Committee on Law and Technology, and in 1974, the newly formed ABA Section on Science and Technology Law. Through to the late 1990's the Jurimetrics Journal was edited by members of the successive sponsoring ABA bodies. See Lee Loevinger, Jurimetrics Starts a New Chapter, 25 JURIMETRICS J. [xiv] 1984.
(19.) From the late 1990's its publication has been aided by a student editorial board at the Sandra Day O'Connor College of Law of Arizona State University, Nonetheless, it remains an ABA publication: the ABA retains the trademark rights to the term 'Jurimetrics' and retains the copyright of the published material, unless otherwise noted; requests to reproduce portions of articles are to be made to the ABA and reprints of articles are to acknowledge the "permission of the American Bar Association"; and subscription requests and payments are made through and to the ABA. Starting in 2010 it is no longer published in hard copy though an end-of-publishing-year print-on-demand version will be made available. It has been rebranded, Jurimetrics Online, and is available to subscribers via the Internet. See Jurimetrics Journal, About the Journal, http://www.law.asu.edu/ jurimetrics/JurimetricsJournal/AbouttheJournal/AboutJurimetrics.aspx (last visited Nov. 9, 2010).
(20.) Law and Computer Technology was first published in 1968 by the World Peace Through Law Center which began life in 1963 with Charles Rhyne, a former President of the American Bar Association, as its driving force. From its inception Law and Computer Technology has had an international focus, providing opportunity for the inclusion of reports recording the very first uses of computer technology in legal or legislative contexts in many countries including those in the underdeveloped world. The quality, range and depth of articles varied a good deal. It was published under this name until 1980 when it was changed to Law/Technology. Starting in 1990 its publisher was listed as the World Jurist Association (WJA) of the World Peace Through Law Center and by 1997 all references to the World Peace Through Law Center had been dropped. The WJA is described as a non-governmental organization with special consultative status at the UN Economic and Social Council" and offers itself as "an alternative method to reach the international community". See generally World Jurist Association, About, http://www.worldjurist.org/index.php ?option=com_content&view=article&id=22&Itemid=29 (last visited Nov. 9, 2010).
(21.) A group of ABA publications which includes the Jurimetrics Journal have followed a similar path. During the 1990's the ABA started to associate some of its practitioner periodicals with law schools and incorporated student boards to work with the editorial boards from the relevant ABA Section. The Sections hoped to reduce some administrative burden by receiving publishing assistance. These publications retain the attributes of the practitioner periodicals that the Sections produce for their members; and, by establishing a law school connection expanded the publications' scope. Nonetheless, they remain official publications of the ABA. The ABA
produces some excellent periodicals but, strictly speaking, they do not fall within the traditional definition of the academic law journal described above. In addition to the Jurimetrics Journal, examples of this class of publication (listed by ABA Section and law school association) are the Administrative Law Review (Administrative Law Section and Washington College of Law), the International Lawyer (International Law Section and Southern Methodist University School of Law), the Public Contract Law Journal (Public Contract Law Section and The George Washington University Law School), The Tax Lawyer and The State and Local Tax Lawyer (Section on Taxation and Georgetown University Law Center), and The Urban Lawyer (State and Local Government Section and University of Missouri-Kansas City School of Law).
(22.) It should be noted that the research and data gathering arm of the CIA was interested in automatic translation of textual material. Research on this subject was often included in compilations of materials in the area of computers, information automation and law.
(23.) We had a somewhat murky status until then, at least as far as formal recognition as a university (or law school) publication was concerned. However, no one in authority wanted to discourage us in our endeavors--I suppose it was as though a "don't ask, don't tell" rule was being applied to us.
(24.) See James C. Baxendale, Index and Selected Bibliography on Computers and the Law, 1 RUTGERS J. COMPUTERS & L. 102 (Spring 1970).
(25.) Fortieth Selected Bibliography on Computers, Technology and the Law, 35 RUTGERS COMPUTER & TECH. L. J. 296 (2009).
(26.) The numerical codes for index categories cited here are from the index as it was in 1970-1972. Some subcategories were added after the publication of the first issue, Spring 1970. Current numerical codes for these categories today are slightly different.
(27.) From the Editorial Board, supra note 24, at v. In stating that the computer had provided us with the capacity to destroy ourselves, I was thinking about the possibility of a nuclear holocaust initiated without human intervention, perhaps due to an inadvertent coding error or a circuit failure, the chances of which I saw as growing as we expanded our reliance on computers.
(29.) James Baxendale, Commercial Banking and the Checkless Society, 1 RUTGERS J. COMPUTER. L. 80 (Fall 1970). The article was cited in John T. Soma, COMPUTER TECHNOLOGY AND THE LAW 308-09 n. 1 (1983).
(30.) I maintained that the development of a checkless society would be possible, however, there would be hazards ahead in the development of such a society. Those dangers were predicted to include threats to individuals' privacy, increased opportunity for fraud, dehumanizing effects on humans, and the increased chance for a total system's breakdown (and therefore the possibility for a paralysis of the nation's economy). The article concluded that there was "a substantial question as to whether or not such a society could be developed without these hazards." Id. at 98 (emphasis added).
(31.) Republican representing New Jersey in the United States Senate from 1955 to 1979.
(32.) 116 CONG. REC. 25, 910-11 (1970).
(33.) Robert P. Chartrand, Congress: The Three Dimensional Chessboard--The Role of Information Technology, supra note 24, at 50.
(34.) CONG. REC. 25,910.
(35.) CONG. REC. 25,911.
(36.) Doug Auster, Jim Broscious, Susan Fassbender (now Susan Fields), Ham Gore, Steven Katz, Danny Knee, John Mayson, Mel Randall, Marty Tropper, Pete Vyssas, and Gordon Wolf constituted, with me, the first editorial board. The following individuals were also editors for the second issue in Fall 1970: Alan Andreini, James Dow, Tom Fodice, Leonard Kessler, James Key, and Catherine Mitchell.
(37.) When I was asked to write this piece in recognition of our fortieth anniversary I looked to see how many law schools had emulated our idea by adopting our model or one close to it. I was surprised to see that the count is now more than forty and includes like publications at many fine and venerable law schools. For Rutgers to have led the way for the law schools of Harvard, Yale, Stanford, Columbia, Michigan, Virginia, Duke, Berkeley, Northwestern, Chapel Hill, William and Mary, UCLA, among others, is very satisfying.
JAMES BAXENDALE *
* James Baxendale is the founder and first Editor-in-Chief of the Rutgers Computer and Technology Law Journal (formerly known as the Rutgers Journal of Computers and the Law) forty years ago. He received his B.A. from Rutgers College, his M.B.A from the Rutgers Graduate School of Business, and his J.D. from Rutgers University School of Law--Newark. After Rutgers, he was a postgraduate student in Computers and Law (specifically computers and the law relating to privacy in common law jurisdictions) at Oxford University where he is a member of Magdalen College. His practice, in Portland, Oregon, has focused principally on utilities and energy, corporate governance, and government regulation of business. He also consults on regulatory economics and maintains a keen interest in all things related to the legal and societal implications of computer use. He can be reached at James@Baxendale.com.
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|Publication:||Rutgers Computer & Technology Law Journal|
|Date:||Jun 22, 2010|
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