Your iPhone is Made of Law

An update on my current research on the digitalization of legal practices

My current research seeks to understand the role of law and policy processes, particularly technologies of legal writing, in contemporary processes of globalization. Globalization as it currently exists could not work without an intricate, dynamic fabric woven of coordinating agreements, standards, contracts, and legal regimes. In a very material sense, everything from domain name regulation to worldwide inequalities of wealth distribution require a lot of legal fine print for their existence and persistence. What goes into that "legal fine print," what goes into the ordered activity of those myriad small compacts, is generally experienced as technical problem-solving, not as the application of grand ideologies. But they add up to a world in which some things are possible and others not, a world in which some have more power and resources than others. My aim, as international legal scholar David Kennedy puts it in A World of Struggle, "is to bring knowledge practices and power practices into the same frame."

Why is your iPhone made of law? A smartphone is hardly just the chemicals it is made from. What distinguishes that thing in your pocket from a useless block of exotic dust is not inside it: it is what it is because of its place in an elaborate, global set of social conditions and agreements. Jack Qiu and others have pointed to the crucial role of low wage, non-unionized Asian labor in making hi tech products exist and function. This part is essential, but your iPhone could not exist also because of, for example, a long list of technical standards involving everything from microchip surface mounting technologies to radio frequency allocations to TCP/IP protocols. It could not exist but for a globalized system of manufacture and distribution dependent on phenomena ranging from labor laws and policies to intellectual property regimes to standardized shipping containers. These myriad coordinating arrangements, small and large are, in a very material sense, the warp and woof of the fabric of global life.

My current research looks at the role of digitally-mediated law in constituting this fabric. Beginning in 2015, I began a series of interviews with Manhattan big firm legal professionals about their routine experiences with technologies. These firms mostly deal with legal issues involving large, for-profit enterprises – i.e., the kind of activity that makes up most of the legal activity in the world today. I was struck by how they took for granted the international character of their work. When I began my career in the 1980s, "international law" was a narrow legal specialty and was considered more a utopian hope than an existing reality. Back then the world was a collection of nation states playing power games with each other, and for the most part the "rule of law" did not reliably cross international borders. That is no longer the case. The firms of the legal professionals I interviewed all had offices around the world, and they assumed that they worked with issues that crossed borders and jurisdictions. I began to realize that "international law" is not a specialty anymore. In a globalized economy, it is now just the way much of the law is.

What's interesting to me is that most of this internationalization did not happen as we often imagine legal regimes happening. We like to think that first, abstract principles get turned into broad legal rules when they are written in treaties and legislation, and only then are they implemented "on the ground" by practicing jurists. We imagine that things move from the realm of ideas and principles to the practical world of lawyers and regulators. But in the last twenty years, a dense international legal regime has bubbled up, certainly not from the bottom, but from some middle realm. Annelise Riles found Japanese regulators creating neoliberal reforms not because of allegiance to an ideology, but by engaging in "a set of routinized but highly compartmentalized knowledge practices, many of which have a technical legal character." Global regulation of internet domain names – the core framework for the operation of the internet itself – has emerged, not through any political institution, but through a nonprofit corporation which presents itself as operating according to a mix of politically neutral technological and legal practices. Copyright rules spread and evolve globally, not just through international agreements, but through myriad small activities of various legal professionals solving small problems for clients. There's no denying that all this involves the creation and maintenance of inequalities. What my work seeks to draw attention to, however, is that this inequality takes shape as much by microstructures of decision making embedded in routine legal and technical practices as it does by grand political actions.

How should these microstructures be characterized? Kennedy focuses on what he calls expertise. Riles focuses on both expertise and what she calls "legal aesthetics," a proclivity to solve public problems by turning them into matters of private law. My approach seeks to flesh out these foci by centering on technologies of writing, where "writing" is understood in both (1) the Derridean sense of practices of inscription with effects beyond their spoken meaning and (2) in the routine sense of forms of information production, storage, retrieval, and dissemination. Arguably, most of the writing in the world today is legal. A simple mortgage refinance involves more written words than the average novel. Teachers, police officers, city employees, and many other workers routinely receive multiple emails per week, each containing many thousands of words of policies and regulations. Legislatures routinely pass laws too long for any single person to have read all the way through. And we all regularly consent to click-through contracts thousands of words long every time we update some software or buy something online. While it would be too simple to say this constant proliferation of legal language throughout social life causes neoliberal globalization, my working hypothesis is that globalization as we know it is unthinkable without it, and that any long-term political project for change will need to think through the politics of expertise embedded in this routine legal activity.

I am currently working on two essays elaborating these lines of thinking: one titled "Your iPhone is Made of Law" focusing on the role of legal writing practices in globalization, and the other on the under-acknowledged importance of law and legal writing technologies in the study of media and communication. In the future, I expect to continue my series of interviews with legal professionals, with a focus on the shifting role of technologies in big firm document production associated with corporate litigation, e.g. the now-standard process of e-discovery, which electronically creates and organizes literal truckloads of documentation for each corporate case.