By Madeline J. Rivlin
Adjunct Professor Pace University School of Law, staff member ZeekBeek
Listening to the presentations at Reinvent Law NYC it occurred to me that Walter Benjamin would probably have enjoyed the program – and not just because of the brilliant, enthusiastic, innovative speakers and all the talk of “disruption.”
One of the main takeaways was that technology offers an opportunity to make law more useful and accessible than ever before. Speakers including Margaret Hagan, Abe Geiger of Shake, and of course Richard Susskind all talked about challenging ourselves to see how law can be reinvented to better serve the end user.
It all made me think of Walter Benjamin’s famous 1936 essay entitled “The Work of Art in the Age of Mechanical Reproduction” asserting that mechanical reproduction (notably photography and film) compelled a redefinition of “art,” and laying out what he saw as the consequent social and political effects of that redefinition.
Benjamin discusses the unique existence of an original work of art in time and space, which he terms the “aura”…which withers in the age of mechanical reproduction. One might generalize by saying: the technique of reproduction detaches the reproduced object from the domain of tradition. By making many reproductions it substitutes a plurality of copies for a unique existence. And in permitting the reproduction to meet the beholder or listener in his own particular situation, it reactivates the object reproduced.” Benjamin thought those changes would “lead to a tremendous shattering of tradition…and renewal of mankind.” Disruption indeed!
Apart from a document of great historic significance, like the Declaration of Independence, it is difficult to conceive of the “aura” of a legal document in this way. But in a looser sense computerized reproduction has caused a similar result, as one might say it is now less likely that a document will have a unique and private existence, and instead that it is now more likely that a document will be similar to others of its type and will interact with them in a fluid environment, and therein find its value.
Although there may be a final version of a given document that has legal effect, the computerized version is simultaneously extant and available for circulation.Even in the case of a document, such as a Will, that has only one single final original, computerization permits its content to exist and interact independently. That may be contrasted with a final document in the pre-computer era the existence of which was congruent with and limited by its physical manifesta tion. While short of “aura,” computerized word processing thus does tend to detach the document’s existence from its corporeality and, hence, from its historic moment, and give it a new existence and communicative meaning.
The enhanced public and interactive qualities of documents using computerized word processing initially made it much easier for lawyers to find and appropriate or adapt an existing document for their own current purposes – thereby permitting the document to better “meet” the lawyer “in his or her own particular situation” and be “reactivated.” But lawyers were still the gatekeepers of those documents. Improvements in technology have now accelerated the process, first through interactive document drafting platforms, such as Interactive Legal, where a group of expert lawyers essentially guide others, then on to self-drafting platforms like LegalZoom, and now onto mobile platforms like Shake – significantly upping the ante on “reactivation” and “meeting” the user, and breaking with the “domain of tradition.” Connectivity, standardization and accessibility now become the criteria for evaluation.
In other words, the more interactive and available a document is, the greater its value. In Benjamin’s terms perhaps that means we as lawyers (or at least many of us) will have stopped being painters and instead become filmmakers – the new technology of his time which he valued for its mass appeal, but now of course also being challenged by even newer forms of media such as websites and video games. Indeed, based on ReinventLaw NYC the function of legal documents seems poised to transcend what we have seen as the traditional form and become further separated from any physical writing or, perhaps, from any specific writing at all. Let the Disruption begin!
(This article is adapted from a longer work in progress.)