When the ground quakes, nature delivers a 100 year storm, or many lives are changed abruptly in some other unexpected way there is a powerful human tendency to focus on the immediate environment, to interpret the large scale event in very personal terms. This might be thought of as the "Where were you when ..." phenomenon. Dramatic shifts in technology produce a similar effect. Lacking a reasonable base of experience, concepts or language to deal with the new in generic terms, people often relate to it in intensely personal ways. Consider the fierce loyalties to particular software, computers, and computer environments that prevail among serious word people as they first adopt word-processing. In time most mature to an understanding of the phenomenon that is less dependent on what happens when one strikes the F-7 key or clicks on a particular picture. Most comprehension and discourse about the digital revolution or its most recent eruption, the Internet, exhibits this parochial quality. Despite the repetitious use of words like "world" and "global" or the less grandiose "national" to describe these exciting phenomena most of the talk is, at bottom, about "me" and "us". Under these circumstances a radical change in vantage point can be useful, albeit disorienting, as well.
Early this year I had an opportunity see the digital revolution from the perspective of a developing country. That perspective informs or more accurately dominates the following reflections. Because I am imposing this perspective on you (The original invitation from NCAIR did not point in this direction.) and because I know the U.S. world pretty well, but remain a beginning student of life, law, political and social environment in Zambia, I feel the need for a few more words of explanation. Three reasons prompt this focus: first, a conclusion, already suggested, that these reflections while nominally about a developing country inevitably concern and illuminate our own situation in the U.S.; second, a desire to probe, if only a little, into the frequently expressed concerns about information technology and the gap between "haves" and "have nots"; and finally, an intense curiosity about a recent experience that is so fresh and strong. That last reason alone leads me to feel compelled to share the experience and my preliminary thoughts about it so that I can learn from the reactions and questions of others.
For better than a decade I have, like many of you, been pursuing questions concerning the impact of digital technology on the set of activities we call law. Most of my pursuit has taken very tangible form (and, I should note, has been made possible through generous support from NCAIR). By "tangible form" I mean simply that this research has been experimental rather than strictly theoretical, that it has entailed participation and action rather than detached observation of what others were about. The first large project, begun in 1988, involved investigating how to design a fully electronic law treatise, one that would take full advantage of digital technology which allowed such a specialist's map of a field to be surrounded by nearly all of the relevant source material and connected to it on a robust hypertext and full-text search platform. This project entailed building an electronic Social Security treatise and database with U.S. lawyers, judges, and public officials very much in mind and addressing the myriad issues of format and function posed by the new medium. Social Security Plus, published on CD-ROM by Clark, Boardman, Callaghan (successor to an earlier LEXIS version) was the direct result and the many design and process elements of that work now appearing in other CD-ROM publications, its lineal descendants. That first hypertext project led to the stream of activities that Tom Bruce and I have carried out since 1992 as the Legal Information Institute.
From time to time both Tom and I have tried to step back from the experimental mode to consider the connection (past, present, and future) between information technology and law or other "big picture" views of the larger phenomena to which our experiments relate. In 1989, toward the end of a long lecture on such matters delivered at Chicago-Kent and Cornell, I managed a brief glance beyond the U.S. border:
...[I]n our present society and economy, access to relevant law data from around the globe is as important as commercial law decisions from Massachusetts or North Dakota were to the New York lawyer of the turn of the century. I, therefore, take great encouragement from the fact that a lawyer in New York or San Francisco or Ithaca, with computer and modem (and command of the relevant foreign language) has access a very comprehensive set of Italian, or German, or French legal materials. I even imagine that this new information technology may permit countries that have failed to muster the resources to distribute their law in print to do so electronically . (Emphasis added)
Last year brought a challenge to elaborate on that last thought. In the spring, as I worked to refine my ideas about the historic connection between information technology and law for a conference in Montreal and to think more clearly about the likely consequences of digital law in the U.S. in preparation for NCAIR sponsored meeting on that subject here in D.C., I was invited to meet with a group of African law school deans then touring America. In the exchange I heard them describe a very different legal education setting, a very different law setting, than those surveys took for granted. They spoke poignantly of libraries that had received no new books or journals for a decade or more, of faculties cut off from international exchange. They were visiting U.S. law schools, under the auspices of the A.B.A. with U.S. government support, in part, to seek donations of books. Hesitantly but in considerable detail, I suggested that mailing a collection of CD-ROMs along with funds for a computer might be more useful to their institutions than shipping the equivalent numbers of cast off books. I pointed to the Internet as a means of connecting their faculties and students to colleagues and information resources elsewhere on their own continent and around the globe - pointing specifically to the Constitutional Repository at Wits and to a new site that had arisen in Zambia maintained by an entity called Zamnet. With startling speed, the presentation led to an opportunity to test those ideas and some others.
From mid-January to mid-February of this year I worked in Zambia, at the University law school, with Zamnet, law faculty, the judiciary, and the national law association to establish a law database. Internet access to it is now available at http://lii.zamnet.zm:8000/
More about what that digital collection contains and why will follow, but before turning to specifics let's review some of the ways effective access to reasonably complete and current legal information can bear on the resolution of disputes both within and outside a court structure. And to put these general notions into the Zambian context, it is may be necessary to devote at least brief attention to the country's history, legal regime, and current situation.
Disputes between individuals, artificial entities like corporations or public bodies can take many forms. Formal legal systems like ours limit public dispute resolution resources -- courts, similar public bodies, and the "law" applied by them -- to a small subset of the whole. Countless insults, grievances, widely recognized social wrongs must be resolved, if at all, outside the formal legal system. While there are many differences between the U.S. and Zambia, both countries speak with law and open their courts to a common range of matters, including disputes involving personal injury or death, the destruction of property, the forming and ending of family relationships and associated allocation of property, government benefits and taxation, as well as disputes that arise out of business and commercial relationships, government regulation, and conflicts between organs of government. The courts available to resolve this broad range of matters are themselves a source of subsidiary disputes about jurisdiction, evidence, procedure, and remedy. To the extent that "private" dispute resolution options exist alongside the public system for many of the above types, these options are likely themselves be the subject of law, at least their interface, their binding effect on any subsequent public proceeding, will be.
In Zambia, as in the U.S., law is not concerned with dispute resolution alone. Many of its aspects can be viewed as aimed at dispute avoidance or other goals. Critical to nearly all these functions is effective communication or information flow. As Marc Galanter has observed, law "usually works not by exercise of force but by information transfer, by communication of what's expected, what forbidden, what allowable, what are the consequences of acting in certain ways." Galanter points out how such notions as "deterrence," "bargaining in the shadow of the law," and "legal socialization" assume an information flow. Marc Galanter, "The Legal Malaise: Or, Justice Observed," 19 Law and Society Review 537, 545 (1985). (For more on this point click here.)
Within that fraction of law that is dispute focused, there are some matters over which the courts hold effective monopoly. (For example, neither Zambian nor the U.S. law allows completely private settlement of harm inflicted by an intentional killing or theft.) With many types of disagreement, however, the disputants can and do resort to other means than litigation. But whether forced to use the courts or given an option, parties have a need for accurate and relevant legal information. Dispute resolution whether or not it takes place outside a court or under the mandatory jurisdiction or oversight of a public body inevitably takes place in "the shadow of the law." The more diffuse that shadow is, the greater the difficulty disputants will have in evaluating the "merits" of their position as well as the availability and attractiveness of possible dispute resolution alternatives.
To render all of this more concrete, let us place three quite ordinary situations of potential dispute in a Zambian setting (problems arising in terrestrial not cyberspace). For ease of future cross-reference let's call them cases 1, 2, and 3.
As we move closer to the ground, let me remind you that this is less about Zambia than it is about us. I am moved to repeat the point because while I may know more about Zambia than most reading this essay and shall do my best to represent its legal situation accurately, I am acutely aware of how much I do not know on this subject. It is probably better to think about the following cases as arising in a hypothetical developing nation, similar to Zambia, as a reminder that the value of these reflections should not depend on precise details of Zambian law. Nonetheless, a few points should be stipulated or assumed about this "hypothetical" developing nation. The caption for a photo of Monrovia in the New York Times for April 24, 1996, appropriately characterizes the city as "lawless." There are, tragically, parts of Africa (and the U.S.) where disputes are resolved brutally and randomly by young males with guns and most institutions of formal law have come apart. That is not Zambia. Since independence in 1964 it has not had serious episodes of civil strife. A critical first stipulation then is that our hypothetical developing nation is not "lawless" in this extreme sense. Second, there are parts of Africa (and the U.S.) where the public agencies of dispute resolution, judiciary, police, lawyers, respond readily to political pressure, bribes or both. I know of no evidence that Zambia is any more plagued with such lapses from the "rule of law" ideal than our country is, so let us stipulate as much for our hypothetical country. Finally, anticipating a potential distraction, let us assume that whatever form of democracy or government formation exists in this hypothetical country, changes in government have minimal impact on the law and instrumentalities concerned with most every day disputes, including disputes like the following three. (For more background on Zambia click here.)
Case 1 begins in the general category we know as tort. Zambia has more than its share of traffic accidents. Autos (many of them operating as taxis), minibuses, and trucks fill the road network around Lusaka and other urban centers. The roads are poor, driving erratic. When vehicles collide and damage occurs with it appearing by some accepted standard that one of the parties was at fault, what sort of compensation claims are available? Let us posit such a case. What are the consequences of one party's accepting some compensation, covering immediate repairs, say, especially if it comes with a statement by the other that taking the money waives all further claims? So long as the parties have not behaved in ways transgressing the criminal law, this is one of those numerous situations where dispute resolution without litigation is both permitted and desirable. However, knowing the legal effects of attempted or partial settlement on subsequent access to the courts will have a direct bearing on the extent of and confidence in using non-litigation alternations, including in this instance negotiation.
Case 2 starts with an act of apparent or possible homicide. A woman is burned to death. Two friends to whom she hurried, fatally burned, tell police that before the woman died she accused her husband of setting the fire. The husband protests his innocence, claiming that the fatal fire was the result of a cooking accident. The principal evidence to the contrary is the "hearsay" testimony of the friends. This case lies with a zone where pubic dispute resolutions systems are likely to have a monopoly, but decisions about whether to prosecute and how, as well as the nature of any legal defense, will key on the legal issue of admissibility of this kind of evidence.
Case 3 is also a case of death, but by a means far more common in Zambia than homicide, namely AIDS. In this hypothetical a man in his early thirties has died leaving a wife and three children. The subsequent dispute is between the widow and brothers of the deceased over who will receive the home and modest personal property the young family had accumulated from deceased's ten years as a government worker. Both the deceased and the widow are of the same tribal background and according to the ancient customs of the tribe the husband's parents and siblings are entitled to all his property. However, the family had left their original community to settle in an urban area and had ceased to comply with many of the traditions of their people (including polygamy). How we characterize this dispute must await further background on Zambian law.
With these three cases in the air, let us turn to some possible ways a developing nation's legal system implemented by a professional judiciary and lawyer corps might deal with them, not case by case but in more general terms. At the time African nations began to secure their independence from European countries that had neither encouraged the process nor prepared them for it, they did receive both advice and more substantial help from foreign legal academics. In 1967 Professor L.C.B. Gower, English company law scholar, long time faculty member of the University of London and former Vice Chancellor of Southhampton University, but also early Dean of the Faculty of Law at the University of Lagos wrote:
[The challenge is:] First, to ensure that the law applying in these countries is more readily accessible than in alien (English) statute books and law reports: ideally the accessible form should be local codes. Second, to adapt the received English law so as to make it really applicable to local conditions and ideologies; unless and until the whole law is codified this means giving judges freedom to develop a judge made law which does not slavishly following English decisions and ensuring that the judges are equipped for that role. Third, to bring about greater unification between divergent customary laws and between them and English law. Fourth, as a long term aim, to do away with the dichotomy between the received English law and customary law, and in the meantime to reform those aspects of customary law, especially in the fields of land law and inheritance, which inhibit economic growth. These are mammoth tasks. They demand the services of highly skilled lawyers.
L.C.B. Gower, Independent Africa, The Challenge of the Legal Profession (Harvard Univ. Press 1967).
"Highly skilled lawyers" and judges were in short supply. (Zambia had no university, no law school, and only 85 lawyers at the time of its independence.) Gower's advice also implicitly assumed levels of effective access to legal information not easily met in a developing nation.
From the same starting point, independence from a European country, with few judges and lawyers and only the beginnings of a national legal structure, a more realistic approach to dispute resolution but consistent with at least a portion of Gower's advice would be a method one might call "individual common sense" -- the application of a judge's own common sense informed by legal education and community notions of fairness and justice. The principal advantages of such an approach in a country of slender resources and short history is that disputes, whether of liability, or scope of settlement, or evidence or family wealth distribution, can be resolved without recourse to "written law" -- act of parliament, appellate opinions, or books by experts. The major disadvantages of such a system include: the difficulty of predicting judicial action (It is hard to resolve disputes in the shadow of such law.), inequity (There is limited assurance in such a system that like cases will be treated alike, or dissimilar cases with appropriate differentness.), and failures of national policy (Insofar as law exists to modify behaviors or the effects of custom, this type of system will not perform.). Because of these problems and for other reasons, including the powerful influence of professional culture, many African nations have come painfully close to the approach that Gower termed reliance on "alien (English) statute books and law reports". This approach makes use of explicit law, "written law" consisting of past judicial opinions of the nation's earlier colonial master as modified by subsequent enactments. Typically it also includes a system of appeals aimed a increasing uniformity in interpreting this law among initial deciders. It offers greater predictability than "judicial common sense", and consequently, better informed decisions about litigation and alternative forms of dispute resolution, but at a huge cost. The certainty and predictability in this system is furnished through use of appellate decisions focused on an alien time and place. Before treating this approach too dismissively, fairness demands we recall that during its first three decades of independence and more the United States reasonably could be said to have followed this approach. As Professor Lawrence Friedman reports of this period:
Indigenous legal literature was weak and derivative. There was no general habit of publishing American decisions; American case reports were not common until a generation or more after Independence. To common-law lawyers, a shortage of cases was crippling. To fill the gap, English materials were used, English reports cited, English judges quoted as authority. In the first generation, more English than American cases were cited in American reports. Ordinary lawyers referred to Blackstone constantly; they used his book as a shortcut to the law; and Blackstone was English to the core.
Lawrence M. Friedman, A History of American Law 112 (2d ed. 1985); see also id 322-33.
Zambia's nominal approach might be characterized as English common law but with a stronger preference for local precedent and statutes. The pertinent law provides:
Subject to the provisions of the Zambia Independence Order, 1964, and to any other written law --
(a) the common law; and
(b) the doctrines of equity; and
(c) the statutes which were in force in England on the 17th August, 1911 (being the commencement of the Northern Rhodesia Order in Council, 1911) ...
shall be in force in the Republic.
The English Law (Extent of Application) Act, CAP. 4
Far more readily that U.S. courts so soon after independence Zambian courts have commenced working with their own precedents. By my count in a small sample of decisions of the Supreme Court of Zambia from the early nineties the ratio of authority ran 13 to 11, Zambian to English. In the first ten decisions of 1995, the ratio was up to 20 to 9 (with 4 of the 9, being a single decision of the Privy Council cited in four different decisions of the Supreme Court). But any effort to characterize Zambia's approach to law must take account of the legal information situation that has prevailed in the country for the last decade or longer.
While the Zambian Supreme Court has an unmistakable preference for its own precedents, it also has a unique position of access. The current Chief Justice has been on the court for over ten years. As the Court decides, on average, no more than 25 or so matters with full opinion a year, it is not difficult for members of the Court, in general, and the Chief Justice in particular to recall a prior decision bearing on a current dispute and retrieve it from the file. But since 1985 there has been no systematic distribution of the Court's decisions to lower courts, the bar, or the nation's one law school. This is not by design but due to collapse of the prior arrangements for publication, a consequence of severe national economic duress. (Very few books of any kind were printed within Zambia between 1985 and 1996. And other uses of very limited foreign exchange have taken priority over the acquisition of legal materials from outside the country.)
Returning to Cases 1 and 2 sketched above, it is time now to report that each was addressed very directly by a decision of the Zambian Supreme Court during this "blackout" period -- Case 1, by Zambia State Insurance Corporation, Ltd. v. Chanda (1992/SCZ/9); Case 2, by Sinyama v. The People (1993/SCZ/5). Yet unless a lawyer or judge consulted with the High Court library in Lusaka and found the one archival copy of these decisions held there or had earlier acquired one of the few mimeographed copies of the original decision, these precedents would not have been available to guide dispute resolution in an identical or similar case arising in 1995, until and unless the case reached the Supreme Court.
Case 3 aligns with a different, though related, failure in legal information flow. Zambia's 1989 Intestate Succession Act lays out clear guidelines for this type of dispute. The act provides for inheritance by the widow and children. Moreover, seeking to protect families, surviving widows and children especially, against well-seated tribal customs that gave them no such entitlement the Act also established fines for any interference with succession rights. But as you have surely by now suspected, access to this and other Acts of Parliament is severely limited. All acts are printed when passed by a Government Printing Office, but once the initial stock has been depleted there seems to have been no regular program of reprinting. Recently, a member of the University of Zambia law faculty argued a legal point based on the country's new Companies Act before a judge who was unaware that it had been passed. My understanding is that this is more an index of poor information flow than evidence of judicial incompetence.
It is into this setting that "on-line" Zambian law was introduced in February, 1996, offering a significant fraction of the missing decisions of the Supreme Court of Zambia, the nation's constitution, and a growing body of recent acts of Parliament. All have been digitized, placed in a database, and mounted on the Internet. (See http://lii.zamnet.zm:8000/) Zambia now has the first national law database on the Net in Africa. That is a legitimate point of pride, but the issue we are pursuing is one of relationship or consequences. What effects may the new law server have on the quality of legal decision-making and dispute resolution in the country?
In the United States, the impact of digital law, law on the Net, or the potential of on-line dispute resolution, must be understood against a background rich with alternatives, or, at least so it seems, particularly to legal academics or large firm lawyers. In the U.S. moving legal information of the kind now mounted on the Zambian Law Server to the Internet would simply represent a new (and, for some, very attractive) distribution path for material that has in most cases already had existence in and often distribution in digital form. In Zambia and similar settings it can mean much more; more even than the birth of on-line law in the U.S. meant during our first digital revolution in the seventies and eighties. In Zambia and countries like it the important step occurs on the path to the Net as law is, for the first time, digitized. The creation of the database allows cost-effective printing, importantly printing on demand. It allows distribution on disk, as well as, on-line access. In the U.S. for fundamental types of legal information, precedential decisions of high courts, statutes, and binding regulations, there is a profusion of choice. The impact of digital law on a setting where previously few except the high court and legislative staff had access to reasonably complete legal information is likely to be far greater.
So far the discussion has proceeded as though Zambia, and other developing countries, were closed systems. That is hardly the case. Important groups within Zambia have a keen interest in non-Zambian legal information of several kinds. The country has also come to realize it has a compelling reason to provide potential outside investors and donors with access to Zambian law.
Because the nation has but 31 years of its own law-making, Zambian public officials and courts often confront fresh legal questions of major importance. With less than 5 years elapsed in the pursuit of multi-party democracy and a market-based economy, the country's law makers are conscious of their need to consult outside models. The judiciary are especially eager to look at the decisions of other national courts resolving similar disputes when they face litigation involving fundament rights (disputes between individuals and the government) or basic power relationships within government, including the role of judicial review. In one high profile freedom of assembly case decided earlier this year, Chief Justice Ngulube's opinion refered to decisions from: four other African nations - the Supreme Court of Ghana (1993), High Court of Nigeria (1984), Court of Appeal of Tanzania (1993), and Supreme Court of Zimbabwe (1994) - plus the Supreme Courts of India (3 opinions), the United States (2), and the European Court of Human Rights. (See Mulundika v The People (1995/SCZ/25).) On-line law in Zambia not only holds out the prospect of far better access to Zambian statutes and appellate decisions, but it also opens a virtual international law library in a setting where book libraries have failed. This may have value, not only in the context, of high profile litigation, but in the drafting of legislation and ongoing debates over constitutional amendments.
As Professor William Park recently noted:
In a heterogeneous world, lack of reasonable certainty regarding the applicable norms will rarely enhance cross-border commerce, finance, or investment.
William W. Park, "Neutrality, Predictability and Economic Co-operation", 12 Journal of International Arbitration 99 (1995).
Today, Zambia aggressively seeks international investment and grant support. It has opened a stock exchange, begun to sell off segments of previously state run enterprises, and their real estate. Not surprisingly, the country's Privatization Agency is the first governmental body to mount a Web page. The act of putting Zambian law surrounding economic activity on the Net, as well, is a modest complementary step. (I use the qualifier "modest" because investor concerns about political stability, i.e., whether the law and economy will remain as they now appear, no matter how fully and accurately they are reported, will continue to have an inhibiting effect on capital markets in many developing countries). Whatever mix of Zambian law, international treaty, or designated law of another forum may govern a potential business transaction or investment, improved access to that law ex ante can only encourage the arrangement. This is as true for the potential Zambian participants as for outside entities. For those in Zambia seeking trade and investment, the Zambian Legal Information Institute's server's organized links to such key documents as the United Nations Convention on the International Sale of Goods and GATT may hold even more significance than the access to Zambian law it affords outsiders.
"If you build it, they will come" is a risky strategy in a corn field; but it holds greater promise there than in Manhattan, judging from number of retail casualties among start-ups I've seen in my neighborhood this past year. Those foolish enough to imagine the Internet in 1995-96 to be more like a cornfield than New York City have, in large number, been disappointed. But that is how the Internet is experienced in an environment rich with commercial, entertainment, information, and dispute resolution alternatives. By contrast, to a lawyer, parliamentary staff person, or judge in Zambia, the very modest first offerings of the Zambian Legal Information Institute stand out with evident and exciting promise. For someone seeking to resolve a family, commercial, or property dispute with another in the U.S. the relative advantages of an on-line dispute resolution system may seem less than obvious. The reaction is likely to be similar to that of most well-supported firm lawyers in the U.S. who, upon hearing of Internet-based legal information, will invariably ask: "What does it offer that Westlaw, LEXIS, or CD-ROMs do not?" Those already familiar with functioning alternatives, will not flock to a new "digital" dispute center simply because it is there. Targeting those without effective alternatives to on-line dispute resolution, on the one hand, and aiming at a supportive or complementary role (rather than a competitive one) in relation to the countless existing public and private dispute resolution agencies, on the other, may be more successful strategies.
In concluding, let me return to the observation with which I began, namely, that during times of dramatic change people tend to focus on their immediate environment. Having spent but one month in Zambia and begun a digital law project in a country I came to as a stranger, I am deeply aware of the many reasons why the promise one might hypothesize for the venture, may, in time, not be fulfilled -- reasons having to do with major institutional, cultural, political variables about which I remain ignorant, powerless, or both.
As ignorant as I am about Zambia, I am more so about the field of study and practice called "dispute resolution". If digital law takes root and has pervasive impact in Zambia it will be because some combination of the law school, Zamnet, the judiciary, legal profession, and public bodies of the country take ownership of the technology and its manifestation in this initial database. I suppose the same to be true of dispute resolution on the Net. But I only suppose; this is a vast and complicated field. I am aware of, but not familiar with the rich literature of arbitration, negotiation, and mediation. I am more familiar with the work of Professor Cass Sunstein and others on adjudication generally[n1] and Professor Jerry Mashaw and others on the often competing values that must be balanced off in the design or critique of administrative systems for high volume dispute resolution[n2]. Digital communication and Internet-based activities, more generally, have for sure added both new dimension to potential disputes and new tools for dispute resolution. But surviving and successful applications of this technology to dispute resolution will, I suspect, need to be informed by the best scholarship on adjudicative and non-adjudicative methods for settling disagreements. They will, most of them, need to be "owned" by the many strong institutions, public and private, that were doing effective work in the field of dispute resolution before the Internet happened.
1. See, e.g., Cass R. Sunstein, "Problems with Rules", 83 Calif. L. Rev. 953 (1995) and Robert G. Bone, "Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity", 46 Vand. L. Rev. 561 (1993).
2. See, e.g., Jerry L. Mashaw, "Conflicts and Compromise Among Models of Administrative Justice", 1981 Duke L.J. 181.