Most M.U.L.L. subscribers have read, and may have written, a number of general articles about the potential legal significance of computers and the possible applications of electronic data retrieval techniques to legal research. (R2)  Few are likely to be startled, therefore, by Judge Brown’s reports that computers are now used to operate bank checking systems and airlines, that the law of evidence will have to accommodate the punched card and magnetic tape, or that computers may soon help us find our way through the monsoon of statues, administrative regulations, court opinions, and commentary that shower upon us.  If this were all the article provided it would be worthwhile nevertheless both as an appropriate introduction to our subject and as an effective review of the literature.  But Judge Brown’s article also provides some new ideas, as well as footnotes that abound in useful references, and the charming style that has come to be so characteristic of this outstanding judge.

Judge Brown went from Nebraska to a distinguished career as a law student at Michigan, soon became a prominent member of the Gulf Coast admiralty bar in Houston, was appointed to the court in 1955, and has in a brief six years become a colorful and influential member of the federal judiciary.  Few who read the Federal reporter advance sheets have missed his facile style and the pungent analysis that so securely carries the rapids of relevance to the destination that is decision. (R3)  Much of the admiralty law of the past few years has come from his pen, (R4) and a list of his contribution of dissents that have become majority opinions of the Supreme Court would include the Lincoln Mills case (R5) in labor law and the recent Gomillion v. Lightfoot opinion (R6) that paved the way for the Tennessee redistricting case (R7) this Term.  Since coming to the Court he has spoken widely throughout the country, (R8) remained active in bar association work (R9) and law school functions, (R10) and written in the law reviews (R11).

 It is a source of some satisfaction to those of us concerned with the “computer’s collision with law” – as well as, we would say, an additional credit to Judge Brown – that a judge of his stature has written seriously on this subject in one of the nation’s leading law reviews. (R12)  His article will do much to remove the remaining suspicions of those few judges, lawyers and law professor who are not yet sure whether to fear, sneer, or cheer.  This is an article that should be reprinted and widely circulated and cited.  It is, to my knowledge, the first article by a well-recognized judge and among the first to be published in a leading law review. (R13)

 Judge Brown’s article deals with three major subjects:  the risks and potential legal liabilities of using computers, the use of computer-managed facts in lawsuits, and the use of computers for legal research.

 Judge Brown does not go into much detail about situations that might give rise to legal liability for computer owners.  He says:

As with any of man’s ingenious devices, the existence of the computer spells trouble.  And trouble spells litigation.  The trouble may arise, and normally would, from a use of a computer where the computer output, whether operational or merely data process, is faulty.  On the other hand, trouble might come from a failure to use reasonable available computer facilities. (R14)

 He does point out some evidence problems surrounding a technologically ignorant populace in the second half of the twentieth century, (R21) however, and his observations are entitled to serious consideration by practicing trial lawyers as well as students of jurisprudence.  The computer’s contribution to evidence law will come, he says, in “the use and availability of the computer-product either in pretrial discovery or as evidence on trial [and]…the use of the data computer in the assimilation and handling of masses of evidence.” (R22)  He is hopeful that judges and lawyers will be “most cordial in [their] reception of this new facility,” and expresses the opinion that the Federal Business Records Act and the Uniform Business Records As Evidence Act are broad enough to make the computer’s product acceptable as evidence. (R23)  Not only will courts have to make use of records intelligible only to computers, but they may need the computer’s assistance to handle the masses of traditional evidence with which they must deal in the big case. (R24)  Roy Freed has written of the use of data organizing techniques by trial lawyers, (R25) and there are reports that the antitrust division is using computers to assist with its massive evidence problems. (R26)

 Finally, Judge Brown writes of the use of computers in legal research.  He calls for a “workable index of statutory materials,” such as the American Bar Foundation is now undertaking, and argues that machines will not “do away with books or with lawyers” but will simply “save…precious professional time in the routine low-order search….” (R27)

 Perhaps Judge Brown’s most significant contribution in this article is his plea that there be wider participation in litigation by interested outsiders.  He argues that outside interest and assistance is especially needed in dealing with questions of liability for operations of computers, and admission into evidence of their product.  He notes the variation in the “competence, resourcefulness, and facilities of counsel [and]…the identity, solvency, size and interest of the litigants…” and the resulting “drawback…that so much is left to chance” in the development of legal doctrine. (R28)  He advocates a new role, not as amicus curiae, or as a party, but an appearance “for a party,” presumably similar to intervention. (R29)  It is certainly true that large businesses and law firms are far more likely to engage in attempts to influence the growth of statutory laws than judge-made law, even though their interests may be equally affected by both.  Dean Newman, writing of “The Process of Prescribing Due Process,” has made similar and forceful arguments about the need for court assistance in difficult cases involving questions of due process procedures. (R30)  He emphasizes that any reform of Supreme Court opinions should be directed not alone at the Justices, (R31) or the parties’ lawyers, (R32) but rather at “improved lawyering…and efficient procedures…[as] institutional goals.” (R33)  The institutional solution Dean Newman proposes is a greater use of amicus briefs:  more specific requests by the courts and more briefs proffered by responsible lawyers with or without clients whose interests are at stake. (R34)  Whether the idea is expressed as more appearances “for a party” or as the submission of more amicus briefs, it is well worth more serious consideration than it has received, is particularly appropriate in the “computer’s collision with the law,” and has gained impetus by this endorsement from this distinguished jurist.

* Brown, John R., “Electronic Brains and the Legal Mind:  Computing the Data Computer’s Collision With Law,” 71 Yale L. J. 239 (1961).

R1 The December 1961 issue is a symposium commemorating the fortieth anniversary of the four lectures Benjamin Cardozo delivered at Yale and subsequently published as THE NATURE OF THE JUDICIAL PROCESS (1921).  In addition to Judge Brown, the Symposium authors include U.S. Court of Appeals Judges Charles E. Clark, Henry J. Friendly, and Joseph C. Hutcheson, Jr., New York Court of Appeals Judge John Van Voorhis, and Professor Arthur L. Corbin.

R2 Perhaps the most recent bibliographies are Smith, Selected Articles on Information Retrieval, 62M M.U.L.L. 23, and A Basic Techno-Legal Bibliography for Law Students and Young Lawyers (April 1960).  The latter has been compiled by the Techno-Legal Committee of the American Law Student Association, and is available from the Association, American Bar Center, Chicago 37, Illinois.  It is primarily the work of Paul S. Hoffman, a law student at Harvard Law School and chairman of the Committee.  See his article, “The Computer and You,” 7 STUDENT LAW. J. 9 (1962).

R3 Robert Storey, former ABA President, Dean of Southern Methodist University Law School, and President of the Southwestern Legal Foundation, has said of Judge Brown: “His judicial opinions as a Member of that great Court [U.S. Court of Appeals, Fifth Circuit] have gained the high regard of lawyers, not only for their legal soundness but for the trenchant style in which they are couched.”  Foreword to Brown, BONING UP ON RESEARCH (1959), see n. 8. infra.

R4 See, e.g., Continental Grain Co. v. Federal Barge Lines, Inc., 268 F.2d 240 (5th Cir. 1959), aff’d, 364 U.S. 19 (1960).

R5 Lincoln Mills of Alabama v. Textile Workers, CIO, 230 F.2d 81, 89 (5th Cir. 1956) (dissenting opinion), rev’d, 353 U.S. 448 (1957).

R6 Gomillion v. Lightfoot, 270 F.2d 594, 599 (5th Cir. 1959) (dissenting opinion), rev’d, 364 U.S. 339 (1960).

R7 Baker v. Carr, 369 U.S. 186 (1962).

R8 See, e.g., Free Will in the Frontiers of Federalism, opening address at University of Michigan Law School Centennial celebration, Ann Arbor, Oct. 22, 1959, published in 58 MICH. L. REV. 999 (1960); Boning up on Research, address before Southwestern Legal Foundation (Southern Methodist University Law School) annual meeting, Dallas, May 1, 1959, published by the Foundation; Where is the “Ease” in “Patentese?” address before Texas State Bar Convention, San Antonio, July 4, 1958, reported in TEXAS B. J. 509 (1958); Whence Come These Sinews? Address before Texas State Bar Convention, Ft. Worth, July 5, 1957, published in 12 WYO L. J. 22 (1956), 20 TEXAS B. J. 451 (1957).

R9 He was chairman of the Houston Bar Association Committee on Lectures and Institutes that sponsored a public lecture series on the Supreme Court.  Speakers included Deans Forrester of Tulane, Ribble of Virginia, and Rostow of Yale.  The papers presented have been published in 4 SO. TEXAS L.J. 107 (1959).  See Brown, Foreword, SO. TEXAS L. J. i (1959).  And see n. 8, supra.

R10 Each fall he has presided at the Annual Taxation Conferences, University of Texas Law School, Austin.  His participation at Kentucky, Michigan, and Southern Methodist is mentioned in n. 8 supra.

R11 In addition to the publications listed in nn. 8 and 9, supra, he has also written, “Federal Judge Looks at Liability Insurance,” 28 INS. COUNSEL J. 576 (1961), “Hail to the Chief: Hutcheson the Judge,” 38 TEXAS L. REV. 140 (1959), and “Enforcing Arbitration Under the Taft-Hartley Law:  A Dissenting View,” 11 ARB. J. 21 (1956).

R12 Nor is this Judge Brown’s first venture.  In St. Paul, he addressed to the West Publishing Company “A Plea for Enthusiastic Support for Serious Study and Experimentation in the Use of Electronic Data Computers for Analysis of Legal Literature” (July 1960).  See 71 YALE L. J. at 245 n. 11.

R13 Lee Loevinger, former Justice of the Minnesota Supreme Court and present Assistant Attorney General, Antitrust, Department of Justice, is likewise counted among the more distinguished in our midst.  See, e.g., “Jurimetrics – The Next Step Forward, “ 33 MINN. L. REV. 455 (1949), “Jurimetrics: Science and Prediction in the Field of Law,” 46 MINN. L. REV. 255 (1961), and their progeny, Johnson, “Jurimetrics and the Association of American Law Schools,” 14 J. LEGAL ED. 385 (1962).

R14 71 YALE L. J. at 243.  He acknowledges the contribution of the “untiring apostle” Roy Freed to an understanding of liability for computers, and cites many of Freed’s articles 71 YALE L. J. at 241-42 n. 5.

R15 Id. at 245.

R16 Id. at 245 n. 11.

R17 Id. at 246.

R18 Ibid.

R19 See Rogers v. Missouri Pacific R.R., 352 U.S. 50, 524, 559 (1957).

R20 Judge Brown has suggested that perhaps an automatic transmission is likewise beyond the comprehension of a juror.  Thurber Corp. v. Fairchild Motor Corp., 269 F. 2d 841, 851-52 (5th Cir. 1959), cited 71 YALE L. J. at 246 n. 13.

R21 See Snow, SCIENCE AND GOVERNMENT (1961) and Brown, “Science and Government,” KEY REP. 2 (1962), for a discussion of the difficulties and defects in our system of formulating governmental policies about matters technical, and Palamountain, THE DOLCIN CASE (1960) (unpublished case study of The Inter- University Case Program) for a specific illustration involving scientific fact in an adversary setting before the Federal Trade Commission in a misleading advertising case.

R22 71 YALE L. J. at 247.

R23 Id. at 248, citing MCCORMICK, EVIDENCE 206-09 (1954).

R24 Id. at 250.  And see id., n. 22, citing “Handbook of Recommended Procedures for the Trial of Protracted Cases,” 25 F.R.D. 351 (1960).

R25 Freed, “The Machine Data Processing Systems for the Trial Lawyer,” 6 PRAC. LAW. 73 (April 1960).

R26 See Wall St. J., Oct. 10, 1961, p. 1.

R27 71 YALE L. J. at 253.

R28 Id. at 246.

R29 Id. at 247.

R30 Newman, “The Process of Prescribing ‘Due Process’,” 49 CALIF. L. REV. 215, 231-37 (1961).

R31 He quotes Thurman Arnold’s observation that Supreme Court opinions “rank higher than the articles which appear in the Harvard Law Review.”  Id. at 232.  Arnold, “Professor Hart’s Theology,” 73 HARVARD L. REV. 1298 (1960).

R32 He does say, however, that “if we must identify the mortal sinners in the due-process prescribing process, I nominate the lawyers for plaintiff and defendant.”  Id. at 234.

R33 Emphasis supplied.  Id. at 233.

R34 “Why should not lawyers and law professors – individually, for clients, for ABA, AALS, ACLU, and other groups, for governments – articulate via amicus briefs a concern with due process procedure law…?  We have taught ourselves that…scholarly writings, alone, do not sufficiently influence…and that reform activity, to be fruitful, has to be packaged efficiently.  For courts is not the best package…the amicus brief?”  Id. at 236-37.