Cybertime, Cyberspace and Cyberlaw 

M. E. K. [FN 1][source.]

"Cybertime does not remove or replace clock time; yet it too may place a novel set of interactions with time on top of a temporal model that we assume is part of the fixed natural order, rather than a changeable culture." par 26 This article links the concept of time to the concept of law and proposes a serious concern about the possible consequences of cybertime.   compare the definition of time by The Order of Time



{par. 1} In this philosophical essay, Professor K.pursues the relationship between time in cyberspace, or "cybertime" as he calls it, and legal doctrines. He speculates that many such doctrines are based explicitly or implicitly on time or our conception of time. He then asks whether the concept of "cybertime," with its accelerated pace, may not cause substantial disruption in these legal doctrines, a disruption not before noted or appreciated.



Space and Time  

{par. 2} If there is something that computers have forced into our society, it is a different sense of time. We still conceive of time within the mental framework of the eighteenth century: time is what is set by a clock, God as "the Great Clockmaker" (V.), and so on. The (re)emergence of different sense of time will not destroy the traditional one, but make it relative. [FN 2] N. S. {par. 3} Cybertime is to time as cyberspace is to space. Or is it?  

{par. 4} In several pieces of writing over the last few years, [FN 3] I have considered the impact on law of information technologies that have extraordinary capabilities for overcoming space and distance. I have argued that the new media are a significant cultural and legal phenomenon not because they enable us to perform informational tasks faster than before but because they change how we interact with distant information and distant people. I have tried to point out that it is a new relationship with space, how we think about distance and work in and with electronic spaces, that underlies many different changes in law that are now surfacing and that will occur in the future. As capabilities for working with people and information over great distances become widespread, and as attitudes and expectations about space and distance change, new relationships are formed, new entities and institutions are established, new patterns of behavior emerge, and the law ultimately recognizes that it is changing because the environment of which it is a part has changed.  

{par. 5} The link between law, communications media and spatial orientations and practices is not as direct or as overt as the relationship between law and economics, politics or some other discipline or ideology. New communications technologies engage us in change at a cultural level, as we adapt to new experiences, new patterns of behavior, and new expectations about the nature and use of information. The law accommodates itself to such background changes but it may not explicitly acknowledge them or even be aware that it is responding to change at this level.  

{par. 6} F. S. has observed that "[l]egal rules and principles commonly contain not only normative determinations about what ought or ought not happen under certain circumstances, but also background factual assumptions about the nature of the world." [FN 4] As the form of information changes from something tangible to something electronic, changes will occur in legal institutions and processes that have been oriented around particular physical spaces, and in legal concepts and doctrines that have depended upon a relationship with a particular space.  

{par. 7} Over forty years ago, the Canadian economist, H. I., M.M.'s colleague and mentor, suggested that the introduction of a new medium of communication sets in motion deep-rooted change in important societal institutions by influencing orientations about time and space. Writing more than a decade before "the medium is the message" [FN 5] became part of popular culture, I. asserted that "the materials on which words were written down have often counted for more than the words themselves." [FN 6] I. argued that while public attention is often focused on the content of the new medium, the key to understanding long term change lay elsewhere, particularly in how a medium either permits or hinders communication over space and either encourages or discourages the preservation of information over time.  

{par. 8} Every medium of communication, according to I., has a bias toward either space or time which influences how it is used and what it is used for. If the bias is in the direction of space, it supports communication from afar and fosters links among persons separated by distance. If it is biased toward time, it encourages the preservation of information over time. For I., whether the society's principal medium of communication encouraged the spread of information spatially or temporally had significant political, economic and cultural consequences.  

{par. 9} The law, as J. B. once observed, is "limited by time and space." [FN 7] More than this, the law might be said to have a "sense of place" or be "of a place" in that there are informational places that are central to the process and operation of law. Law libraries are an obvious example of a legal information place, but so are individual items, such as books, or even artifacts, such as contracts. For such physical information places, however, the new technologies facilitate access or create new relationships with information by overcoming physical limits associated with the walls of the library, the binding of a book, and even the margins of a page.  

{par. 10} The invasion of legal spaces by cyberspace, however, goes beyond the law's physical places and objects. For example, the law describes and defines many issues and concepts in spatial terms. Thus, privacy not only involves individual control over certain kinds of information but employs spatial terms, such as zones of privacy, to describe its nature. Jurisdiction is an area of law that is directly linked to control over people and spaces. Even the legal profession has spatial characteristics in the sense that it, like any other profession, has boundaries that exclude non-professionals from membership and participation. All of these areas are touched by cyberspace because if there is any one message of the new media, it is that traditional boundaries, whether they be physical, territorial or conceptual, are more porous in an age where information is digital in nature.  

{par. 11} The new media's impact on law's specialized information places, on legal processes and methods that involve the movement of information over distance, on legal doctrines and concepts that require information to be contained in some manner, and even on the boundaries of how law is categorized, still seem to me to be likely, over time, to be profound. It is in the area of space and distance that one can experiment with new models of scholarly communication, such as this journal, with new ways of managing relationships, with new ways for resolving conflicts, with new ways of ordering behavior, and with new ways of storing, accessing and sharing information.  

{par. 12} There are considerable problems that are likely to arise in this new environment or space, such as high levels of conflict resulting from information transactions and information relationships that do not succeed. Such conflicts, however, might be considered an opportunity for the law and to be the ground upon which new approaches to conflict resolution and managing behavior develop.  

{par. 13} But what of time? It has intrigued me that while I have been focussed on space, and have endeavored to identify links between law and space, the interest in the new technologies by both the public and the profession has largely been focussed on time and speed. This attention is understandable, since the speed with which the new technologies perform many informational tasks is both extraordinarily impressive and easily demonstrated. In addition, economic value has a clear link to time and speed, as is suggested by the slogan "time is money."  

{par. 14} I have sometimes thought that a more appropriate economic slogan for a digital era is "space is money," in that economic rewards will derive from developing and exploiting novel relationships and new capabilities for overcoming constraints of space and distance. In a transition period, however, the slogans and habits of thought of the past continue to be influential and there is still a strong belief that doing more in less time, something facilitated by the new media, is the path to economic success.  

{par. 15} Justice F. F. once wrote that "no court can make time stand still." [FN 8] There are limits to the power of law and the passage of time is a part of the natural world that certainly cannot be stopped. But time is not merely a quality or facet of the natural world, something fixed and unchangeable. It is, in addition, something cultural. We make assumptions about time and we structure norms and standards around these conceptions of time. The law employs time, invokes time, and has expectations about time. Sometimes time flies. Sometimes, we "make time." Sometimes we "bill time" and sometimes "time runs out." Sometimes, we worry about "time bombs" and maintaining the status quo. Perhaps the law cannot make the sun stand still, but legal rulings do, on occasion, "stop the clock from running." We may not be able to "turn back the clock" but we do, on occasion, apply court decisions retroactively. In a variety of situations, therefore, the law enjoys a relationship with time.  

{par. 16} As we appreciate and adapt to a novel spatial environment, we need to ask as well whether it is being accompanied by a new temporal environment and, if so, what the nature of that temporal environment is and what its link to law is. If cyberspace exists and is forcing the law to change, then there may very well also be a cybertime dimension that should be attended to. In the remainder of this piece, therefore, I would like to put forward a few thoughts about time and the law's use of time. I shall comment briefly on areas in which law will be concerned with cybertime but my intention is less to assert something definitively than to begin a discussion about a link between law and the new media that I have not seen extensively discussed elsewhere.  

{par. 17} In considering cybertime, my concern is not with particular time limits the law establishes for carrying out certain procedures. The new technologies will encourage the shortening of some time periods, since they do allow informational tasks to be carried out more quickly than previously. Cybertime, however, is more about time frames than time limits. Cybertime is not simply about speeding up information-related processes but having a different sense of past and present, of the role of the past and the value of the past, and even a different series of concerns about the future.  

{par. 18} Just as cyberspace does not replace our physical surroundings or move us out of our physical environments, cybertime does not imply that we will necessarily measure time differently in the future or find a replacement for the clock. It does suggest that our relationship to time may be different from what it has been in the past and that the meaning of time in some contexts may change. Its impact, therefore, is felt not in our view of the discrete time periods that the law employs but, more subtly, on attitudes about time and about the value of past, present and future information. ------------------------------------------------------------------------  


Law and the past  

{par. 19} The technology of printing provided a trustworthy means to capture a particular moment in time and fix it on paper. In this sense, the advent of printing brought the past into the present, "the world of the dead into the space of the gentleman's library." [FN 9] Textual works, of course, filter the past considerably, leaving out much information about any recorded event. The virtue of print is not that it presents a complete or necessarily true picture of some past event but that the words the reader sees can be trusted to be the same words composed by the author. In the legal context, this means that whatever words are written by a judge or legislature are accurately communicated to readers wherever they may be located and however removed in time they may be.  

{par. 20} Although many manuscripts prior to Gutenberg (internet e-text-archive, T.O.) contained information similar to the information later found in printed works, how the information was perceived, how it was used, and what it was thought to represent changed radically as printing spread. In "scribal culture," where copying by hand inevitably introduced errors into every copy made, the oldest version of any work or document was considered to be the most perfect and to represent most closely the words of the author. [FN 10]  

{par. 21} In the manuscript era, it was impossible to be certain what the original author had written because "every copy was unique, with its own variations." [FN 11] The more a book was copied, the less authentic it became. [FN 12] After print, the most recent version or edition was most appreciated and considered most valuable since what occurred over time was not the compounding of errors but the growth of knowledge.  

{par. 22} Printing, therefore, effectively brought about a complete shift in the preservation of the past and in the attitude toward revised copies of older works. As a result, "it produced fundamental alterations in prevailing patterns of continuity and change" [FN 13] and provided printed information with a degree of authority that had been unattainable with writing. [FN 14] As T. J. once observed,  

{par. 23} Very early into my researches into the laws of Virginia I observed that many of them were already lost, and many more on the point of being lost, as existing only in single copies in the hands of careful or curious individuals, on whose death they would probably be used for waste paper .... How many of the precious works of antiquity were lost while they existed only in manuscript? Has there ever been one lost since the art of printing has rendered it the only means of preserving those remains of our laws now under consideration, that is, a multiplication of printed copies. [FN 15]  

{par. 24} The law is an institution that treats the past with reverence. D. L. has written that "legal argument is a struggle for the privilege of recounting the past." [FN 16] Inevitably, a system of law that takes the past seriously requires a means of communicating the past in a trustworthy and authoritative way. It requires that we respect the past, see links between the present and the past, and see value in allowing the past to shape the present. It requires a means of communication that supports and reinforces such attitudes and expectations.  

{par. 25} The new technologies, as the term cyberspace implies, allow those who work with information to overcome existing spatial boundaries and barriers to communication. Cyberspace does not mean that all territorial, institutional, doctrinal, or conceptual boundaries are replaced and become irrelevant, but cyberspace does overlay a whole new set of opportunities for overcoming physical distances and creating and shaping virtual spaces. It is for this reason, and because new levels of informational interactions emerge that may not have existed before, that legal questions touching on the use of space, such as jurisdiction, become more complicated. More fundamentally, legal arrangements that assume something about the use and communication of information over space, such as the regulation or definition of the legal profession or a contract between several parties in different places, become vulnerable.  

{par. 26} Cybertime may be viewed in a similar fashion as a force for changing temporal boundaries. Cybertime does not remove or replace clock time; yet it too may place a novel set of interactions with time on top of a temporal model that we assume is part of the fixed natural order, rather than a changeable culture.  

{par. 27} In print culture, the relationship between past and present is perceived to be both clear and linear. Printed works are "dated," both in the sense that their date of publication is clear [FN 17] and in the sense that any printed work is necessarily of the past. There is a discreteness about the past when it is embodied in print, a palpable separation of it from the present. This clear boundary is reinforced whenever one experiences the tactile sensation of opening a book. [FN 18]  

{par. 28} Electronic works are also dated, but in addition, they are often up-dated. Print libraries are also updated but, except perhaps for looseleaf services and pocket parts, the present and the past do not merge. New editions join old editions on the shelf allowing us to see past and present side by side. This model could be employed with electronic material but what occurs more commonly than it does with print is that old bits merge with new bits. In this regard, the looseleaf binder is a more appropriate metaphor for electronic information than the bound book.  

{par. 29} Such a change in how information changes over time may seem to many to be simply a change in degree. It is, however, the kind of shift in the presentation of information that the history of print teaches us to take seriously. One might say that many of the changes in the presentation of information that occurred after Gutenberg, such as the placement of page numbers on books, the use of indexes and title pages, and the greater focus on text than image, were also only changes in degree when compared to the appearance of books that were copied by hand. The overall effect of these changes, however, was to produce a different culture, one that valued information from the past differently and that built institutions, such as law, around the changing role of information.  

{par. 30} Electronic publication places us in a more complex relationship with time. Cybertime has brought us new ways of speaking and thinking about time, of "time shifting," of "real time," of relying more on and appreciating the value of asynchronous communication. Much of legal thinking and legal training is about thinking of the present in terms of the past. Yet, cyberspace, even when it presents us with information from the past, does not present us with any fixed icons of the past that are as clear as the books in the library. It does not remove the library from our field of vision but it does place before us some powerful and competing sources of information.  

{par. 31} Chief among these, perhaps, is the network, a source of information that excels in overcoming distance but has relatively little concern with the past. The difference between the network and the library is not that one contains more wisdom than the other. It is, rather, that one embodies, in a clear and tangible way, the wisdom of the past, while the other focuses our attention in a different direction-placing a different emphasis on the past and looking for solutions to problems using different temporal orientations.  

{par. 32} What kinds of consequences to the legal process might there be from such a change in direction, a form of institutional time shifting? For one, we will certainly question how precedent is used and valued. The orientation embodied in the concept of precedent, however, radiates through the legal process. In considering the relative attraction of litigation and techniques of alternative dispute resolution, for example, is there a link between the growing appeal of ADR and a changing temporal orientation? Mediation is a process that has looser ties to the past than more legalistic models. Might it not, therefore, also benefit from our thinking about time differently?  

{par. 33} The lens of cybertime may have precedent as its main focus, but changing connections between past and present will also raise questions in other contexts. Contracts, for example, represent a willingness to be governed by what has been agreed to in the past. Computer-generated or document-assembled contracts, or even EDI (Electronic Document Interchange), generally assume that the same attitudes that underlie the use of paper and printed contracts will be present in an electronic environment. The new technologies allow parties to be together even while physically distant, however, and allow monitoring of performance over time in ways that were not previously possible. Contracts, therefore, if looked at as a means of managing relationships and interactions over time and space, [FN 19] would seem to be a fertile area for experimentation and change [FN 20] as "groupware," project management software, and yet to be developed electronic links, all negate temporal and spatial distances.



Law and the Present  

{par. 34} The law's orientation to the past is an important element in achieving continuity and stability. A related but equally important issue concerns the frequency of change in the present. The late legal philosopher L.F., in his book The Morality of Law, asserted that too much change in the law "does not simply result in a bad system of law; it results in something that is not properly called a legal system at all." [FN 21] F. illustrated his contention with a story about a hypothetical king, Rex, who assumed power and recognized the need for change. Rex,  

{par. 35} we are told came to the throne filled with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations, the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Rex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad. [FN 22]  

{par. 36} Among the many mistakes that the well-intentioned Rex made was to amend his legal code so frequently that planning became difficult, predicting outcomes of disputes impossible, and knowledge of the state of the law at any one time uncertain. Rex's law was up-to-date but it could not be relied on. This degree of uncertainty led Rex's subjects to complain that "a law that changes every day is worse than no law at all." [FN 23]  

{par. 37} The science fiction writer B.S. once made the comment that the new technologies signify that "the status quo is over." [FN 24] The status quo may or may not be over, depending upon how one interprets this comment, but cybertime does suggest that the status quo, whatever it might be, will be defined in shorter time frames than it currently is. It suggests that there will be less satisfaction with the status quo and less support for it. This is a challenge to the law, not because there is no need for the law to change, but because a certain rhythm of change, a rhythm perhaps tied to how fast we are able to communicate information, is almost built into our legal model. As F.'s story suggests, the law is not particularly comfortable with continuous change or with legislation that is of short duration.  

{par. 38} As a society, we have had little experience with Rex's problem. Indeed, one of the most frequently made complaints against legal systems throughout the ages has been that law is too rigid and inflexible, that it is difficult to change, and that, all too often, law is more comfortable with reinforcing the status quo than with bringing about change. Changing perspectives on duration, therefore, may provide an opportunity for desirable legal changes to occur. The same changing perspectives on duration that can be a force for moving forward, however, can be a force for moving backward at a later date in the sense that repealing and revising legislation in light of perceived new circumstances becomes more commonplace.  

{par. 39} Cybertime, if we wish to recognize such a concept, will probably be viewed by most as a force that calls into question various time-regulated procedures in law, such as the right to a speedy trial or the amount of time required to respond to a motion or complaint. Cybertime may be less significant in relation to these concerns, however, than it is in touching legal concepts that imply a certain view of duration, stability, and finality. Thus, cybertime may affect particular rights, but more deeply, it may affect all rights, and perhaps even the concept of a right, since the concept of a right assumes something of more than momentary duration.  

{par. 40} In a recent decision, Justices S. D.O'C., D.S. and A. K. wrote that "liberty finds no refuge in a jurisprudence of doubt." [FN 25] The case in which this appears concerned the constitutionality of a Pennsylvania abortion statute. It was a case that many had assumed would lead to a reversal of R. v. W.. Yet, one determining factor in the case may have had less to do with a substantive legal analysis than with time and duration and the sense that rights and judicial decisions about rights have embedded within them an orientation about time and duration. For O'C., S., and K. there were many concerns about overturning R.. Among them, the Justices write, is that there  

{par. 41} is a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. [FN 26]  

{par. 42} There is, it seems to me, a temporal orientation here that respects duration, the life span of a decision, and considers it to be an important element in the decision-making process. This is also a temporal orientation, one would think, that may feel some pressure from cybertime.  

{par. 43} Justice H. once wrote that "it cannot be helped, it is as it should be, that the law is behind the times." [FN 27] A few years later, Justice B. declared that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." [FN 28] These are, perhaps, debatable propositions but they are understandable perspectives to those trained in a system which views and employs the past and present as our legal system does. Given the nature of cybertime, however, these are the kinds of perspectives that may not have as much attraction in the future. ------------------------------------------------------------------------  


Law and the Future  

{par. 44} Cybertime pushes the present into the past and the past into the present in novel ways. At the same time, it also changes our orientation toward the future. In other words, if cybertime tells us to look at the past differently, it also suggests that our relationship to the future will be different. This is not to say that we will be able to predict the future or control the future any more effectively than we can change the past. We can, however, understand that we make assumptions about the future, that we often act upon these assumptions, and that legal doctrines, concepts and methods contain assumptions about the future.  

{par. 45} We typically think of the future as being, by definition, something that lies ahead of us, as a set of events that will happen as clock time progresses. It is, therefore, difficult to think of the future as something that can be relied on as we rely on the records and interpretations of the past. Yet, although we cannot know the future, we do continuously anticipate the future and draw connections between the past, present and future. In this sense, we continuously shape the present by interacting with a vision of the future, just as we shape the present by interacting with a vision of the past. Expert legal knowledge is not simply knowledge of the past and of what is recorded somewhere, but knowledge of the future as it is likely to be under certain circumstances.  

{par. 46} What the computer provides for us is not necessarily a lens with which to see the future more clearly (although in some instances it may do this) but an environment in which the process of using both past and future accelerates. As this occurs, our sense of time and our use of time changes and, like an animation caused by rapid movement of a set of static images, what is in our field of vision changes. K. K., in his insightful book, Out of Control [FN 29] notes that  

{par. 47} A system-organism, corporate firm, computer program-spends energy feeding the past back into the present because this is an economical way for the system to deal with the future. To see into the future one must see into the past. A constant pulse of the past along feedback loops informs and controls the future.  

{par. 48} But there is another avenue for a system to time-shift into the future. Sense organs in a body that pick up sound and light waves miles away act as meters of the present and more as gauges of the future. Events geographically distant are, for practical purposes, events that hail from the future. An image of an approaching predator becomes information about the future now. A distant roar may soon be an animal up close; a whiff of salt signals a soon-to-be change in tide. Thus an animal's eye "feed-forwards" information from a distant time/space into its here/now body. [FN 30]  

{par. 49} Cybertime, if nothing else, changes our vision of the future by bringing us information from distant places at extraordinary speed. It thus changes our actions in the present which, of course, means that the future will be different from what it might have been.  

{par. 50} It is a good deal harder to see the links between law and time, particularly between law and the future, than it is to see the links between law and space. What does seem clear is that the most significant connections between law and time will be located more in some time-oriented assumption or perspective underlying a law or legal process than in the explicit time-related standards specified in any particular law. Consider, as one example, the link between value and time and how that link is reflected in the copyright law. Currently, the term of copyright protection is life plus fifty years. [FN 31] There are suggestions that the statute should be changed to make the term life plus seventy five years, the same as that contained in the Berne Convention.  

{par. 51} This does not mean that every copyrighted work will have value at the end of the copyright term but it does suggest something about our sense of time and our approach to it. The term of years, for example, is generally consistent with the valuation process of many precious objects, which may not only have value in one hundred years but which will increase in value. Yet, as the most common form of information moves from being tangible to being electronic, it is worth considering whether we may come to have different expectations about future value and about the link between present and future value.  

{par. 52} As I ponder the kinds of assumptions that we make about the relationship between time and value, I hear my seven year old son enter my study and announce, in a plaintive tone, "I'm bored, what can I do?" We are home alone, and it is a sunny early-Spring weekend morning. I should walk away from this article, due at the end of the week, and offer to play outside with him. It would be good for both of us, although I shall have to ask the editor to be a little flexible about the deadline he has given me. Perhaps he can "save some time" on his end. Given what I have written here, this request does not seem too inappropriate to me.  

{par. 53} As I decide that the editor can wait a few more days, my son proudly informs me that he has a baseball card worth forty-eight dollars. Someone had given him a 1956 card of the Chicago Cubs Hall of Fame outfielder E.B.and he has found that the card is listed in a baseball card magazine as being worth forty-eight dollars. I comment that this is obviously his most valuable card, since all of his other cards are no more than a year old. He tells me, however, that he also has a H. A. anniversary card and, on our way outside, we stop to look at it. The card, produced in 1994, is in perfect condition, glossy and shiny with a very colorful picture of A. breaking B.R. home run record in 1974. I tell him that the Banks card, almost forty years old, slightly faded, of a lesser player, is worth more, much more. He grins, thinking I am teasing him. He thinks I am making this up since it makes no sense to him. He also is in no mood to hear about scarcity and demand, so we go out to play.  

{par. 54} As we play, I wonder about the baseball card market in the year 2100. A 1956 card will probably be worth as much as my car, or, with a dose of inflation, perhaps even my house. But I also assume that there will be digital cards, that electronic cards will have displaced most, if not all, traditional cards, and that somehow the digital versions will have value. Of course, they would not be cards, although one could probably print them in that form if one so chose. Probably, at some point closer to today than to 2100, some kind of virtual reality experiences with athletes will substitute for the static and silent card of today.  

{par. 55} In this fantasy, where is the value? Perhaps more importantly, what is the paradigm that will shape how we think of value and protect value? My sense about the link between current and future value is, again, not that all the old rules will be replaced, but that a process of displacement will produce a change in our thinking. There will be items, tangible items, that will be worth more as time passes. But the tangible work that is preserved through time is not as likely to be our paradigm for thinking about time and value as is the work that changes over time [FN 32] and whose future value is not tied explicitly to the passage of time. ------------------------------------------------------------------------  



{par. 56} Our relatively brief experience with cyberspace indicates clearly that the computer is a space machine, negating physical distance and creating new spaces in which novel relationships and activities can occur. As I have suggested above, the computer should also be considered to be a time machine, creating a new environment in which our relationship with time becomes different from what it has been. Just as cyberspace calls upon us to explore what it means to be able to work in and with virtual spaces, cybertime should make us sensitive to issues of time that are in the background of much legal work.  

{par. 57} Time may or may not be measured differently in a digital world but its meaning will be different. We have learned already that space is not a scarce resource in cyberspace. This is one way of understanding why there has been such an extraordinary increase in electronic information activities. Time appears to be a much scarcer resource. [FN 33] Yet, time, like space, may be more malleable in a cyberworld than it is in a physical world. We cannot work with time as we work with space but, as D. B. has noted, the new technologies provide  

{par. 58} a new intimacy with time, as both ally and enemy: previously men and women lived in time and worked through time, but T.'s man is the first who actually works with time. Like space, time is a commodity provided by the computer, a material to be molded, insofar as this is possible, to human ends. This intimate contact with time promises success in time (progress) but also an awareness of ultimate temporal limitations. [FN 34]  

{par. 59} We play many games with time, even in the physical world. I am completing this article, for example, on a Sunday morning, feeling a little more tired than I ordinarily might in the late morning. The reason for this is that we "moved the clock forward" last night and "lost an hour," all for the purpose of seeing some extra sunlight every evening. We have moved quite far from those cultures where activities were guided solely by the rise and fall of the sun each day. Cyberspace moves us further still, to a place of virtual light, indeed a place that has no night, [FN 35] where time can be structured and simulated in even more flexible fashion.  

{par. 60} A new relationship with time has the potential to touch law at many levels. One might wonder, for example, whether something occurring right on the law's surface, the movement away from time-based billing and toward alternative methods of compensation, reflects a recognition that there is more to time than what is measured by the hands of the clock. A move away from time management and toward project management, away from time measurement and toward time meaning, would seem consistent with an attitude that looks beyond what appears on the face of the clock.  

{par. 61} At a deeper level, cybertime suggests that existing boundaries of time may be at risk and that our treatment of past, present, and future are changing. For example, can we expect precedent to have the same role and be employed in the same manner in an era of cybertime and cyberspace? Can traditional expectations and attitudes concerning the finality of decisions be supported? Can a model of enhancing value through preserving information be expected to prevail over a model which assumes that information is always changing?  

{par. 62} Those who encounter cyberspace often experience the kind of disorientation that one feels in a place where behaviors and expectations are different from one's own. We assume that this feeling is a result of entering a world where one finds, unexpectedly, that the space of cyberspace can be crossed in a flash. But perhaps our disorientation is also from the flash itself-from a kind of electronic jet lag in legal thinking that is only now beginning to reveal our new relationship to time in cybertime. ------------------------------------------------------------------------  




[FN 1: Copyright 1995 M. E. K., Professor of Legal Studies, University of Massachusetts at Amherst,]

[FN 2: N. S., Mind is a Leaking Rainbow, in M. B., ed., CYBERSPACE: FIRST STEPS 55 (1991).]

[FN 3: M. E. K., LAW IN A DIGITAL WORLD (1995); M. E. K., Rights, Camera, Action: Cyberspatial Settings and the First Amendment, 104 YALE L.J. 1681 (1995) <HTTP copy>.]

[FN 4: F. S., Free Speech and the Demise of the Soapbox, 84 COLUM. L. REV. 558, 558 (1984) (reviewing ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM (1985)).]

[FN 5: M.. M., UNDERSTANDING MEDIA 23 (1964).]


[FN 7: L. B., The Opportunity in the Law. Address delivered to Harvard Ethical Culture Society, May 4, 1905, cited in G. C. H., JR. AND D. L. R., EDS., THE LEGAL PROFESSION: RESPONSIBILITY AND REGULATION 15 (1985).]

[FN 8: Scripps-Howard Radio, Inc. v. FCC, 62 S. Ct. 875, 879 (1942).]

[FN 9: M. M., Five Sovereign Finger Taxed the Breath, in EDMUND CARPENTER AND MARSHALL MCLUHAN, EDS., EXPLORATIONS IN COMMUNICATION 208 (1960).]


[FN 11: I. D. S. P., TECHNOLOGIES OF FREEDOM 213 (1983).]



[FN 14: This is a central theme of M. E. K., THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989); see also R. K. L. C. and D. M. S., Paratexts, 44 STAN. L. REV. 509 (1992).]

[FN 15: J. B., These Precious Monuments of...Our History, THE AMERICAN ARCHIVIST v. 22, No. 2 (1959), p. 175-176. See also B., S., T. J. AND HIS COPYING MACHINES (1984).] 

[FN 16: D. L., Legal Storytelling: Difference Made Legal: The Court and Dr. K., 87 MICH. L. REV. 2152, 2152 (1989).]

[FN 17: The use of a title page is a practice that came into being shortly after Gutenberg.]

[FN 18: The fact that books represent something fixed is implicit in the remark, attributed to former Governor M. C., that any politician who writes a diary should use a looseleaf binder.]

[FN 19: I. M. THE NEW SOCIAL CONTRACT (1980) R. E. S., Article 2 and Relational Sales Contracts, 26 LOY. L. A. L. REV. 789 (1993); S. M., Elegant Models, Empirical Pictures, and the Complexities of Contracts, 11 LAW &AMP; SOC. REV. 507 (1977).]

[FN 20: This point is more fully discussed in K., LAW IN A DIGITAL WORLD, supra note 3, at 114-32.]

[FN 21: L. F., THE MORALITY OF LAW 39 (1964).]

[FN 22: Id. at 33-34.]

33[FN 23: Id. at 37.]

[FN 24: Address to Computers, Freedom and Privacy Conference IV, March 26, 1994. <gopher copy>.]

[FN 25: Planned Parenthood of Southeastern Pennsylvania v. C., 1992 U.S. Lexis 4751, 23, 112 S. Ct. 2791, 2803 (1992). <FTP copy>.]

[FN 26: 1992 U.S. Lexis 4751 at 65.]

[FN 27: O. W. H., SPEECHES 102 (1934).]

[FN 28: B. v. C. Oil and Gas Co., 285 U.S. 393, 447 (1932).]

[FN 29: K. K., OUT OF CONTROL 25 (1994).]

[FN 30: Id. at 439.]

[FN31: <HTTP copy>]

[FN 32: B. draws an analogy with sharks, who "are said to die of suffocation if they stop swimming, and the same is nearly true of information. Information that isn't moving ceases to exist as anything but potential ... at least until it is allowed to move again. For this reason, the practice of information hoarding, common in bureaucracies, is an especially wrong-headed artifact of physically based value systems." J. P. B., The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, WIRED, March, 1994, at 84.]

[FN 33: See also J. G., Just a Damn Minute, New York Times Magazine, May 14, 1995, p. 12 ("The problem is, even a second is long-not an instant anymore. It stretches out before us as a container, with events and voids to be filled with milli-, nano- or picothings. A second is long enough for impatience to begin welling up.").]

[FN 34: J. D. B., T.'S MAN 101 (1984).]

[FN 35: For a discussion of light as an inherent part of cyberspace, see K., LAW IN A DIGITAL WORLD, supra note 3, at 212-15.]





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