| SUBJECT HEADINGS | ||
| Legalizing computers or computerizing law |
Elisheva Schwartz New York University schwartz@juris.law.nyu.edu |
Aaron Kuperman Library of Congress akup@loc.gov |
Most law catalogers are old enough to remember a time when documents were routinely produced by a mechanical keyboard causing a piece of metal in the shape of a letter to make an impression through an inked ribbon. Some of us remember when mail was hand delivered twice daily, seven days a week, or when telephones had rotary dials and were attached to walls. Even for those of us who don't remember, the world is full of change.
At present anything to do with computers is still "new" — at least in the legal realm. Authors write books on "Internet and law" or "Computers and law" as if they were discrete subjects. If it were not for the newness of the subject, this would make no more sense than "books and the law" or "human existence and the law." At some point legal research via computerized tools will become the norm, and we will no longer need to bring out in subject headings that computerized tools are used, just as we no long need to bring out that printed books are being used for our research (though a library in the 15th century might have considered that to be significant). At some point contracts that exist as data files encrypted by secure electronic signatures will be considered normal, and written contracts will be considered quaint, along with oral contracts attested to by witnesses or contracts bearing a wax seal impressed by signet rings.
Compared to other librarians, law subject catalogers have to deal with those changes in unique ways since the legal community is unusually conservative by nature. We are in a profession based on deliberate use of anachronisms. Anglo-American lawyers claim to be medieval squires while "Civil" lawyers pretend to think like they are wearing togas. Law, almost by definition, extrapolates from a known paradigm to cover a new situation. Environmental law has its roots in the regulation of tanneries. Labor law was once the law of "Master and servant" (emphasis was on the former). All of the laws on using the internet for commercial transaction ("Electronic commerce—Law and legislation") had their origin in the laws governing non-electronic means of engaging in commerce ("Commercial law"). Litigation on the status of web domains deal with legal principles derived from the law of heraldry and paternalistic medieval trade policy.
Following the usual way we catalogers deal with controversy, we will follow whatever the authors do (what in polite company is called "literary warrant"). If they say they are writing a book on "Electronic commerce" or on "computerized" legal research, we will probably respect their judgment and await the day when the editor at the sole surviving law publisher tells the author that he she is revealing their age, since all commerce (or research, or contracts, or signatures) is electronic.
Of course we can look to what authors use in their title and base subject headings on the latest "buzz words". Unfortunately, legal terminology is no less susceptible to the whims of fashion than that of any other field, though the fashions vary. Isn't "Information superhighway—Law and legislation" a really meaningful heading? Does anyone talk like that anymore? It is interesting to note that during the last two years, most of the books cataloged by the Library of Congress with "Information superhighway" in the title have been law books, suggesting that the phrase is still used by lawyers but not by anyone else anymore.
Computer subject headings meander quickly, much faster than (to choose another LCSH fiasco)a Colored can turn into a Negro can turn into an Afro-American and into an African American, while never being Black. When first established as a subject heading by law catalogers "Data protection" was an inherently legal heading based on the European "Datenschutz" dealing with privacy and access, and having a strong civil rights flavor to it—and dating back 30 years (before the "net" and the PC, i.e. before modern civilization). By the 1990s, in English, data protection began to include things like making backups and not playing with magnets while computing, and the heading was kidnapped by the computer science catalogers, necessitating establishing "Data protection—Law and legislation" with a reference structure indicating it isn't the legal aspects of what had become a computer science heading.
Some specific headings have evolved in an interesting way. At one time "Information storage and retrieval systems" were a generic term for any sort of computerized gizmo (and "artificial intelligence" was one of the less believable ideas among science fiction writers). The subject heading "Information storage and retrieval systems—Law" now refers to large data base systems, but is no longer being used for any computerized system. Two subject subdivisions have evolved "Automation" and "Data processing", with the later suggesting a process than can be automated (e.g. judicial decision making, law office management), whereas virtually any legal heading can take "Data processing". Of course the automation of any system depends on data processing, and the computerized processing of data by definition is based on automation. If normal hierarchal rules applied, they might be "related terms" but probably one would be "used for" for the other.
Some terms become broader over time. "Telematics" is defined as "computer assisted communications" which at this point includes virtually all communications other than penmanship or human speech. It might be a great "broadest" term for many books on the "techie" side of computer law (since it doesn't involve content). The term is used in European law books, and by non-lawyers, but hasn't made it into the titles of American law books in a big way. At this point "internet" seems to be merging with "telematics," though "internet" includes discussion of the content whereas "telematics" implies just the technical vehicle. "Computer networks" once meant bunches of computers working together, but today most computers are networked, and at the same time all communications networks are computerized.
"Smart cards" shows the problem in reverse. Originally they were add-ons to computers that had built-in programmable elements (able to process data independent of the host computer), but increasingly one sees the term used as an overall "catch all" for hand-held "money" cards such as stored-value, debit or credit cards. From a legal perspective these are all different beasts: credit cards are loans, debit cards are an alternative to paper checks, stored-value cards are bearer instruments but to a real person these cards are often indistinguishable (except for a techie who thinks that smart cards are toys to insert into the back of a computer). At LC, the business catalogers use the term one way and the computer catalogers use it another way, and for the most part, law catalogers try to avoid using it.
This is probably a "lose-lose" situations for law catalogers. The legal profession is based on creative anachronism and applies ancient rules to ultra-modern problems, so we're stuck translating for Tudor and Claudian wannabees trying to explain things to a world run by geeks and nerds.