I recently accepted an invitation from MetaEzra–blog on all things related to Cornell University–to participate in a panel discussion of the 08-09 New Student Reading Project selection. Incoming students to Cornell read a selected book over the summer, so what they meet in the fall, deep, intellectual conversations replace heavy-petting and makeout sessions.

This time around, they’re reading Lincoln at Gettysburg, a choice I presume meant to tease out comparisons to the present political moment. The panel consists of twenty-something Cornell graduates involved in national politics. One guy is the national volunteer organizer for Obama; another guy is managing editor for the American Spectator and commentator on Fox News. I rep the federal judiciary and Sonya Labs, ya heard?

Editor-in-Chief Matt Nagowski said something about wanting from me a perspective slightly detached from the prevailing winds of the campaign year. The judiciary is often portrayed as the politically neutral third branch of government. Judges have lifetime appointment. And the application of the law is portrayed as a neutral, scientific process.

Law is often expressed as the accumulated wisdom of civilization; therefore, progress comes slow. This, of course, attempts to justify the process of law. On the other hand, reason provides the foundation for law as an inquiry, therefore reason is expected to prevail in the long run. Often, a new set of facts will show how courts stretched an old legal rule beyond the rationale that justifies it. The new decision will then wipe away the old rule by reasoning from underlying principles.

As you know, faithful reader, sanity has not prevailed in the industry of legal research… but it will, naturally. I’ve read some hand-wringing in the blogosphere concerned with the conservatism of law and lawyers in adopting new tools. Using the established tools lends credibility, authority, and a fall guy. No one ever got fired for using IBM!

However, law is done by judges who stick around forever, doing law the same way. Legal research, on the other hand, is done by young associates and law clerks who cycle in and out quickly. In other words, in law, the judge himself is an entrenched barrier to change. Legal research lacks a comparable wall to climb.

See, in law school, the use of precedent, the understanding of the structure of law, etc, are all learned, but they also jive with some sense of fairness and rational governance that we have in our heads, just walking around. In law school, too, lawyers-to-be learn about how legal research is done, but that process doesn’t cohere with any intuition about how research ought to be done.

The new case of legal research presents a novel set of facts. In the old days, Westlaw and Lexis sat firmly on the notion that research generally was a gigantic pain and a logistical nightmare. Young lawyers today have used Google, so they know what’s possible in terms of the ease with which they can retrieve information. Therefore, we must wipe away the old rule that said Wexis was broken but still acceptable, because that was all we knew. The world has changed; irrationality cannot persist for long.