This past year has been difficult for the legal profession-difficult financially because of the collapse of so many high-tech clients and of course because of the lingering aftermath of the terrorist attacks of September 11. This year has also been, and continues to be, challenging legally, as our country struggles with constitutional issues regarding those detained in the wake of September 11 and on the battlefields of Afghanistan. And they've been difficult personally, as what is happening in far-flung regions of the world affects relationships in our firms, our clients' workplaces, and in the corridors of power in Washington. Here are a few forecasts for 2003 and beyond:
1. Immigration law gets real
For too long, our country has not enforced the immigration laws on our books. We are now starting to do so. At the same time, we must make it easier for law-abiding, hard-working people to come legally to this country and stay here, as long as they have a full-time job, with a minimum of hassle. The clamp down in some areas of immigration has had a serious impact on high-tech clients and computer consultancies. For example, if every non-citizen resident must register every change of address, and a network consultant from India moves every six months or so for work (not unusual in the high-tech industry), does anyone think that filing the change-of-address forms (on paper, of course) with the INS improves our national security? Does anyone think that deporting foreign students who work part-time (a violation of their student visas under the current law, but a violation long tolerated) improves our national security?
I hope common sense prevails as our immigration services reform for real. The paralysis and chaos that pervade our immigration law foster disrespect for the law and uncertainty in many peoples' lives. Immigration lawyers are among the most plugged-in attorneys, with many serving clients securely over the Web. I hope their tech-savviness can be tapped to assist the successor to the Immigration and Naturalization Service. Our country will be stronger and safer as a result.
2. Privacy law becomes an established legal practice area
Like computer technology, awareness and knowledge of computers and privacy are starting to permeate all aspects of our legal lives. So, for example, when two real estate attorneys are closing a transaction, they might know that the public records of the property transfer now appear on the Internet. This might affect what information is required on the forms, or how it is presented. Or at least it should.
Steps taken to protect people from identity theft may end up making our personal information more secure than before. We're all vulnerable to identity theft if we use credit cards-credit card number theft is the most common form of ID theft today. Those huge commercial databases are easy pickings to employees of the credit agencies themselves, financial institutions and of course hackers of all kinds. These institutions can and must take steps to protect this information and repair errors. (Lawyers have got to make it easier for the victims of ID theft to clear their names!) Slowly, businesses such as video rental stores are not requiring Social Security Numbers, and consumers are learning that printing your Social Security Number on checks is not necessary or wise. It's all part of educating the public and ourselves, and lawyers are an important part of the educational process.
I am excited by the possibilities that American medical records might finally receive the privacy protections they deserve as national standards to protect the privacy of personal health information emerge under HIPAA. Just as importantly, awareness of patients' privacy rights will change doctors' daily practices. (Unlike lawyers, some doctors still routinely discuss patients' cases on crowded hospital elevators). Not sure what they'll do about patients' charts hanging at the foot of the bed, but can't wait to find out.
Courts are also being towed onto the Information Superhighway, and as court records appear on the Internet, courts can and should lead the way in using technology to redact, protect or eliminate information that jeopardizes someone's privacy, and yet is still available for internal court purposes. It will take a while before the courts get wired, since they operate on budgets that are less than generous. But if the courts can harness the technology, it will transform our legal system in ways we can't even fathom. Given the constituencies the courts serve, from prisoners filing pro se, to non-English speakers needing forms in every language, to demanding commercial lawyers and their clients, through court staff and ever more demanding judges, the courts deserve our support and encouragement as they plug in.
Military courts have long been at the forefront of technology. I wonder, as the war on terrorism continues, if technology can serve educational, civic and security purposes as we grapple with issues concerning those detained in the war on terror. Now that Jose Padilla has won the right to counsel (a right I thought any prisoner in the United States had), I wonder if the public--not to mention the defendant--can "attend" the appellate arguments before the Second Circuit via videotape or radio broadcast. (Federal courts do not televise their proceedings at this writing, and when I clerked on the Second Circuit, the judges were terrified of TV cameras.) Can we use technology to discuss and formulate international norms for the conditions under which those detained or captured in the war on terrorism are held? Can we view the debates at the United Nations or elsewhere as the Geneva Conventions are discussed?
3. Legal publishers still struggle
This is a safe prediction any year. But I'm encouraged at some of the ideas legal publishers are coming up with to deal with the myriad ways lawyers seek information. Pricing norms are emerging, search engines on legal Web sites are improving, and links to source material are proliferating, especially as trial court decisions are slowly becoming more available online. But relationships with advertisers and tech vendors remain problematic, especially as advertising revenues dropped. Legal journalism is still too timid relative to mainstream business journalism. We need to put more sizzle into our reporting, covering both the business aspects of law and the legal aspects of business and pro bono, without fear or favor.
4. Lobbying becomes more effective and more sophisticated
As the Middle East situation and the war on terror continue to heat up, lobbying efforts must become more sophisticated, targeted and effective. The same could be said for much legal pro bono work, too. E-mail petitions are the lazy person's answer to a letter-writing campaign, and many Congress people don't accept or read e-mail any more, even after the anthrax scares slowed down the delivery of regular mail. Interfaith delegations, articles, letters to the editor and reasoned arguments must be the lobbying efforts of choice. And these happen to be the areas where lawyers shine. Despite the headlines, I remain hopeful that 2003 will be a peaceful, more lawful year than those past.