Parchment, Paper, Pixels: Law and the Technologies of Communication
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Technological revolutions have had an unquestionable, if still debatable, impact on culture and society—perhaps none more so than the written word. In the legal realm, the rise of literacy and print culture made possible the governing of large empires, the memorializing of private legal transactions, and the broad distribution of judicial precedents and legislation. Yet each of these technologies has its shadow side: written or printed texts easily become static and the textual practices of the legal profession can frustrate ordinary citizens, who may be bound by documents whose implications they scarcely understand.
Parchment, Paper, Pixels offers an engaging exploration of the impact of three technological revolutions on the law. Beginning with the invention of writing, continuing with the mass production of identical copies of legal texts brought about by the printing press, and ending with a discussion of computers and the Internet, Peter M. Tiersma traces the journey of contracts, wills, statutes, judicial opinions, and other legal texts through the past and into the future.
Though the ultimate effects of modern technologies on our legal system remain to be seen, Parchment, Paper, Pixels offers readers an insightful guide as to how our shifting forms of technological literacy have shaped and continue to shape the practice of law today.
witnessing and signing the will.32 Thus, if the testator acknowledges a will before one witness, who signs it without another witness being present, and then does the same before a second witness, who also signs it, the will is invalid.33 Careful lawyers take additional precautions to ensure a will’s validity. They attach all the pages to one another and number each page as “1 of 6,” “2 of 6,” and so on. They may also have the testator initial every page. They hold the signing ceremony in a room
artiﬁcial if we imagine it as a spoken conversation, but it is completely natural as a written exchange. If my hypothesis is correct, it suggests that judges would not have focused on offer and acceptance until it became relatively common practice to negotiate agreements by means of written messages. The generally accepted view, articulated by A. W. B. Simpson, is that the doctrine of offer and acceptance was adopted from the civil law of continental Europe in the early nineteenth century.34
online commerce will lead to virtually all transactions being textualized to some degree. Whereas today most routine commerce is still conducted orally and disputes are commonly settled by custom and general legal principles, future commerce may increasingly take place in writing and disputes may be settled by the terms and conditions that the seller, via its website, imposes on consumers. In my mind, this is not an attractive prospect. A variation on this theme is what Lemly calls the browsewrap
viewed as essential to the validity of a law or to the lawmaking process in general. In fact, H. L. A. Hart suggests in The Concept of Law that reducing a rule to writing may be part of what separates the prelegal from the legal. What was previously just a matter of custom might now be recognized as a primary rule of obligation. Hart posits that historically this process may have gone through distinguishable stages. The ﬁrst is to reduce hitherto unwritten rules to writing. The next step, Hart
the wordes.”103 While the text of legislation had become increasingly important, it did not reign supreme. Consider also the position of another sixteenth-century observer, Edmund Plowden (1518–85), who reported many of the more important court decisions of his time. More than one-third of Plowden’s reported Statutes 153 cases were concerned with statutes and their application.104 Plowden argued that equity could enlarge or diminish the words of an act: “It is not the words of the law but the