THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 253 (5th ed. 1956) (adapted from discussion of methods of legal research).

One notable exception is M. Ethan Katsh's The Electronic Media and the Transformation of Law, which focuses predominantly on the modifications of the legal culture resulting from the computerization of legal documents. See generally M. ETHAN KATSH, THE ELECTRONIC MEDIA AND THE TRANSFORMATION OF LAW (1989).

For a more extended discussion of the characteristics and properties of paratexts, see text accompanying notes 146­155 infra.

WILLIAM E. HEWITT, VIDEOTAPED TRIAL RECORDS: EVALUATION AND GUIDE 3 (1990); see also James L. McCrystal & James L. Young, Pre­Recorded Videotape Trials­An Ohio Innovation, 39 BROOK. L. REV. 560 (1973); Sherwood Allen Salvan, Videotape for the Legal Community, 59 JUDICATURE 222 (1975). Hewitt reports the results of a nationwide study of videotaped trial records conducted by the National Center for State Courts ("NCSC study"). See generally W. HEWITT, supra.

"Enframing" is an activity that brings a person, object, event, or idea into presence and simultaneously sets boundaries around the representation of these things. When we enframe an event, we bring it into presence by describing it in some way (for example, by an oral or written account); as we describe this event, we fix the terms by which we understand it. In the case of the oral or written account, we locate the event within a setting of words, thus fixing our understanding of the event in terms of the words selected to describe it. Had we chosen instead to draw a picture, the same process would occur, but within the field of pictorial representation.

Any technique that reproduces reality enframes or shapes reality. See note 19 infra (explaining our use of the term "reality"). Enframing, therefore, is a quality of any mode of representation, and varies according to the selected mode. Different modes of representation, with their different types of enframing, will set different boundaries.

Throughout this article, we argue that the oral, written, print, and paratextual modes of representation enframe reality in radically different ways. Thus, a shift from one mode of representation to another produces far­ reaching consequences for law, which currently is highly dependent on texts of one sort or another.

We have adapted the word "enframing" from William Lovitt's translation of Martin Heidegger's term Ge­stell, although we do not use the translated word in quite the same sense. We find the word "enframing" suggestive of the manner in which modes of representation alter reality, and use it for our own purposes. See MARTIN HEIDEGGER, THE QUESTION CONCERNING TECHNOLOGY AND OTHER ESSAYS 19 & n.17 (William Lovitt trans., 1977); William Lovitt, Introduction to id. at xiii, xxix.

For an overview of the use of video in civil practice, see MARK A. DOMBROFF, DOMBROFF ON DEMONSTRATIVE EVIDENCE §§ 6.1­.26 (1983 & Supp. 1990) (videotape depositions and day­in­the­life presentations); W. HEWITT, supra note 4 (general trial applications); GREGORY P. JOSEPH, MODERN VISUAL EVIDENCE §§ 1­1 to 4­56, 6­1 to ­42 (1989); Gerry W. Beyer & William R. Buckley, Videotape and the Probate Process: The Nexus Grows, 42 OKLA. L. REV. 43, 44­46 (1989) (noting civil law applications); see also SYBIL SHARPE, ELECTRONICALLY RECORDED EVIDENCE: A GUIDE TO THE USE OF TAPE AND VIDEO RECORDINGS IN CRIMINAL AND CIVIL PROCEEDINGS 19­24, 34­38, 57­64 (1989) (use of video in British civil practice); Milo Geyelin, Candid Camera Wins Some Court Fights for Insurers but Stirs Fairness Debate, WALL ST. J., Aug. 23, 1990, at B1 (discussing the increasing use of videotapes by insurance companies to defend against personal injury and workers' compensation claims); Mary Ellen Tearney, Videotaped Depositions Become Sophisticated­But Watch for Glitches, NAT'L L.J., Feb. 18, 1990, at 29 (noting the prevalence of videotaped depositions in complex civil litigation and the steady growth of videotaping in general civil practice).

In constitutional law, for example, obscenity charges are often determined by reference to some objectionable videotape rather than to a textual account.

Penny Pagano, TV is Bringing Legislatures into the Home, GOVERNING, Dec. 1989, at 58, 58­59; National Conference of State Legislatures, Public Television Coverage of State Legislatures (unpublished memorandum on file with the Stanford Law Review) (public television stations in 27 states produce programs that specifically cover their respective state legislatures).

See, e.g., Richard J. Leighton, The Use and Effectiveness of Demonstrative Evidence and Other Illustrative Materials in Federal Agency Proceedings, 42 ADMIN. L. REV. 35, 36, 39, 46­47, 51, 53, 56, 60­62 (1990).

See AMERICAN BAR ASSOCIATION, VIDEOLAW SEMINARS 1989­90 CATALOG (1989) (listing continuing legal education videotape programs for subjects ranging from antitrust to legal practice skills); John Batt, Law, Science, and Narrative: Reflections on Brain Science, Electronic Media, Story, and Law Learning, 40 J. LEGAL EDUC. 19, 29­46 (1990) (use of electronic information for narrative stimulates the study of law); see also Thomas E. Baker, C­SPAN: A Guide for Law Professors, 40 J. LEGAL EDUC. 295 (1990) (C­SPAN video course for law students); Michel Marriott, Videodisk Joining the Book in Class, N.Y. TIMES, Sept. 12, 1990, at B8 (discussing emerging prominence of a related technology, videodisk, to American primary, secondary, and university education).

G. JOSEPH, supra note 6, at § 5­3.

For example, State v. Payne, 791 S.W. 2d 10 (Tenn. 1990), aff'd, 111 S. Ct. 2597 (1991), involved the stabbing of a white woman and her 2­ year old daughter by a borderline retarded black man. At the criminal trial, the prosecution introduced a color videotape of the crime scene that included a wide­angle shot and close­ups of the mother and daughter lying in a pool of blood. Payne's lawyers argued that the videotape should have been excluded as excessively inflammatory and prejudicial evidence. The lower court permitted the use of the videotaped evidence. See Ruth Marcus, High Court Will Reconsider 1987 Victim Impact Decision, WASH. POST, Feb. 16, 1991, at A6. The Supreme Court ultimately affirmed the lower court's decision. Payne v. Tennessee, 111 S. Ct. 2597 (1991).

For an overview of the use of videotapes in criminal practice, see G. JOSEPH, supra note 6, at §§ 5­3 to ­60; W. HEWITT, supra note 4, at 31­44 (noting criminal trial applications); S. SHARPE, supra note 6, at 25­33, 38­45, 64­70, 84­122 (describing use of video in British criminal practice); Beyer & Buckley, supra note 6, at 43­45 & nn.6­10 (noting criminal law applications). For a recent and extraordinary case in which video technology facilitated criminal arrest, see Constable's Death Seen on Videotape, N.Y. TIMES, Jan. 25, 1991, at A18 (two men charged with murder of county constable after constable stopped them upon suspicion of driving under the influence of alcohol; camera mounted in constable's patrol car recorded "very sharp, very detailed" images of the men apparently beating and stabbing the constable). See also Video Vigilantes, NEWSWEEK, July 22, 1991, at 42.

See Beyer & Buckley, supra note 6, at 47 n.19 ("These video businesses are members of the National Network of Legal Video Companies, Inc., ... and the National Forensic Video Association ....").

On the authorization of video cameras for purposes of television broadcasting, see Federal Courts Chosen for Camera Experiment, BROADCASTING MAG., Dec. 31, 1990, at 70 (stating that subcommittee of the Judicial Conference of the United States approved participation by the federal courts of appeals in New York and San Francisco, and federal district courts in New York, Washington, Pennsylvania, Massachusetts, Michigan, and Indiana, in a 3­year experiment in television video recording); Jane Gross, Panel Urges Test Use of Cameras For Civil Cases in Federal Courts, N.Y. TIMES, Aug. 24, 1990, at A1; David Margolick, Federal Courts May Lift Ban on TV, N.Y. TIMES, May 23, 1990, at A14.

A 1988­1989 report issued by the National Freedom of Information Committee of the Society of Professional Journalists noted that only five states (Indiana, Mississippi, Missouri, South Carolina, and South Dakota) and the District of Columbia bar broadcast media and print photographers from courtrooms. See Tony Mauro, Five States, D.C. Ban Cameras From Courtrooms, in SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTI CHI, F.O.I.: 1988­1989 REPORT 3­5 (1989).

By October of 1989, 59 state courtrooms, located in Arkansas, California, Florida, Hawaii, Kentucky, Michigan, North Carolina, Oregon, Virginia, and Washington, and 2 federal district courtrooms in Arizona, were using video systems to record trial proceedings. In all but the Florida court and the Arizona federal district courts, the systems have been used to make the official court record. See W. HEWITT, supra note 4, at 6­7; Martha Freeman, In Camera Proceedings, CAL. LAW., Nov. 1990, at 26 (noting that video experiments are now scheduled for federal courts in Philadelphia, New Orleans, Pittsburgh, and San Antonio); Richard C. Reuben, Video Transcripts Approved for Trial in Federal Courts, L.A. DAILY J., Sept. 20, 1988, at A1 (2­year pilot program in approximately 6 federal district courts); Ronald J. Taylor, The Video Record, COLLEAGUE, Aug. 1989, at 1 (describing the Kentucky and Michigan videotaped trials); Memorandum from Michael A. Haas to the National Center for State Courts (Dec. 14, 1989) (on file with the Stanford Law Review) (discussing "use of videotape in lieu of court reporters to provide permanent records of trial").

J.Z. YOUNG, DOUBT AND UNCERTAINTY IN SCIENCE 111 (1951).

See generally the law review scholarship of the last century or so.

Etymologically, "context" derives from a combination of the Latin terms con (for cum), meaning "together," and texere, meaning "to weave" (figuratively, the woven structure of an utterance). See WALTER W. SKEAT, A CONCISE ETYMOLOGICAL DICTIONARY OF THE ENGLISH LANGUAGE 109 (1911). It is noteworthy, however, that the Latin prefix con was also used as an abbreviated form of contra meaning "against" or "in opposition to." Id. at 104. A play on etymology that interprets "context" as "against the text" highlights the sense in which we use the term: the totality of the circumstances, facts, and impressions that are not woven into the written or printed account of a legal event. For our purposes, "context" is synonymous with "con/text."

Throughout this article, we examine different modes of communication­ oral, scribal, typographic, and electronic­and compare and contrast their respective potentials for representing "reality." Here, "reality" means the depiction of persons, objects, events, and ideas brought into presence by means of a particular mode of representation or "enframing." See note 5 supra (explaning the term enframing). For example, we understand electronic reality to include the video depiction of persons, objects, events, and ideas that may not have been given the same or any significance in the printed text's rendition of reality. Of course, the electronic text's depiction is still a mediated experience to which we have assigned significance through a set of conventions for human understanding.

The many insightful works of Professor Walter J. Ong have spawned our interest in this subject. His book Orality and Literacy inspired the title of this section. See generally WALTER J. ONG, ORALITY AND LITERACY: THE TECHNOLOGIZING OF THE WORD (1982) [hereinafter W. ONG, ORALITY].

Our sketch of the movement from orality to print and its influence on law is necessarily painted with a broad brush. For more extended accounts of the subjects in Part I, readers may consult the works cited as well as the following: J.H. BAKER, THE LEGAL PROFESSION AND THE COMMON LAW: HISTORICAL ESSAYS (1986); J.B. BURY & RUSSELL MEIGGS, A HISTORY OF GREECE: TO THE DEATH OF ALEXANDER THE GREAT (4th ed. 1975); ELIZABETH L. EISENSTEIN, THE PRINTING PRESS AS AN AGENT OF CHANGE: COMMUNICATIONS AND CULTURAL TRANSFORMATIONS IN EARLY­MODERN EUROPE (1979); LUCIEN FEBVRE & HENRI­JEAN MARTIN, THE COMING OF THE BOOK: THE IMPACT OF PRINTING 1450­1800 (Geoffrey Nowell­Smith & David Wootton eds. & David Gerard trans., 1976); E.PH. GOLDSCHMIDT, MEDIEVAL TEXTS AND THEIR FIRST APPEARANCE IN PRINT (1943); ERIC A. HAVELOCK, THE GREEK CONCEPT OF JUSTICE: FROM ITS SHADOW IN HOMER TO ITS SUBSTANCE IN PLATO (1978); ERIC A. HAVELOCK, THE MUSE LEARNS TO WRITE: REFLECTIONS ON ORALITY AND LITERACY FROM ANTIQUITY TO THE PRESENT (1986); IVAN ILLICH & BARRY SANDERS, ABC: THE ALPHABETIZATION OF THE POPULAR MIND (1988); HAROLD A. INNIS, THE BIAS OF COMMUNICATION (1951); SIR HENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS RELATION TO MODERN IDEAS (London, John Murray 1897); WALTER J. ONG, THE PRESENCE OF THE WORD: SOME PROLEGOMENA FOR CULTURAL AND RELIGIOUS HISTORY (1967) [hereinafter, W. ONG, PRESENCE]; WALTER J. ONG, RAMUS AND TALON INVENTORY (1958); WALTER J. ONG, RAMUS, METHOD AND THE DECAY OF DIALOGUE (1958); ORAL AND WRITTEN COMMUNICATION: HISTORICAL APPROACHES (Richard Leo Enos ed., 1990); 1 SIR FREDERICK POLLOCK & FREDERICK WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW: BEFORE THE TIME OF EDWARD I (2d ed. 1968); DAVID RIESMAN, THE ORAL TRADITION, THE WRITTEN WORD, AND THE SCREEN IMAGE (1956); DOROTHY WHITELOCK, THE BEGINNINGS OF ENGLISH SOCIETY (1964).

For interesting analyses of the relationship between metaphor and understanding outside of and within the law, see generally GEORGE LAKOFF & MARK JOHNSON, THE METAPHORS WE LIVE BY (1980); GEORGE LAKOFF, WOMEN, FIRE, AND DANGEROUS THINGS: WHAT CATEGORIES REVEAL ABOUT THE MIND (1987); Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. PA. L. REV. 1105 (1989).

See text accompanying notes 43­52 infra.

See text accompanying notes 51­52 infra.

The lawgiver Draco wrote a homicide law for the Athenians that remained in force until at least the fourth century B.C. The law punished homicide by exile or reconciliation with the victim's family. See, e.g., MICHAEL GAGARIN, EARLY GREEK LAW 64, 78­79, 86­89, 112­16, 139­40 (1986). See generally RONALD S. STROUD, DRAKON'S LAW ON HOMICIDE (1968).

See ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 21­23 (1966); T. PLUCKNETT, supra note 1, at 295­96; Harold J. Berman, The Origins of Western Legal Science, 90 HARV. L. REV. 894, 898­99, 903­04 (1977); see also note 77 infra (describing Justinian's laws).

The first Anglo­Saxon legal compilation, Ethelbert's Laws, provided specific tariff schedules for various injuries. See, e.g., Harold J. Berman, The Background of the Western Legal Tradition in the Folklaw of the Peoples of Europe, 45 U. CHI. L. REV. 553, 556­57 (1978).

See generally A.E. DICK HOWARD, THE ROAD FROM RUNNEYMEDE: MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA (1968).

See notes 81 & 82 infra.

See notes 79 & 103 infra and accompanying texts.

See text accompanying note 99 infra.

See note 84 infra.

See text accompanying notes 123­124 infra.

See M.E. KATSH, supra note 2, at 3­112, 227­65 (discussing the effects of video and computer technology on the printed law); see also Martin H. Block, Computer­Integrated Courtrooms: Moving the Judicial System into the Twenty­ First Century, TRIAL, Sept. 1991, at 51 (discussing recent developments in the computerization of courtrooms).

David Riesman, The Oral and Written Traditions, in EXPLORATIONS IN COMMUNICATION 109, 109 (Edmund Carpenter & Marshall McLuhan eds., 1960).

See, e.g., H.L.A. HART, THE CONCEPT OF LAW 89­95 (1961). According to Professor Hart: No doubt as a matter of history [the] step from the pre­legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not itself the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e. as the proper way of disposing of doubts as to the existence of the rule. Id. at 92.

See, e.g., M. GAGARIN, supra note 24, at 2­9, 53. Gagarin posits: "In short, laws must have a special position among the rules of a society, and this is normally possible only when they are written." Id. at 11­12.

See, e.g., Harry Levin, Preface to ALBERT B. LORD, THE SINGER OF TALES at xiii, xiii (1960) ("The term 'literature,' presupposing the use of letters, assumes that verbal works of imagination are transmitted by means of writing and reading. The expression 'oral literature' is obviously a contradiction in terms."). For the sake of clarity, we note that the analogy to "oral literature" is ours and not Professor Hart's.

Etymologically, on one level the argument that oral custom is not authoritative is circular. The words "authoritative" and "author" both derive from the Latin term auctor. ERNEST WEEKLY, AN ETYMOLOGICAL DICTIONARY OF MODERN ENGLISH 91 (1967); see also FLORIAN COULMAS, THE WRITING SYSTEMS OF THE WORLD 13 (1989). From this vantage point, it is the author of the written text whose word must be seen as authoritative; in short, authority depends on authorship. Moreover, the Latin term auctor means "guarantor" or "attesting witness." See S.A. HANDFORD & MARY HERBERG, LANGENSHEIDT'S SHORTER LATIN DICTIONARY 49 (1966). In this sense, the oral law is as authoritative as the written law because it has been "authored" by those who bore witness to customs and traditions.

WALTER J. ONG, INTERFACES OF THE WORD: STUDIES IN THE EVOLUTION OF CONSCIOUSNESS AND CULTURE 18 (1977) [hereinafter W. ONG, INTERFACES]; W. ONG, ORALITY, supra note 20, at 136­37 (citing WALTER J. ONG, RHETORIC, ROMANCE, AND TECHNOLOGY: STUDIES IN THE INTERACTION OF EXPRESSION AND CULTURE 284­303 (1971)).

See ROBERT K. LOGAN, THE ALPHABET EFFECT: THE IMPACT OF THE PHONETIC ALPHABET ON THE DEVELOPMENT OF WESTERN CIVILIZATION 19­25, 33­43 (1986); BERTHOLD L. ULLMAN, ANCIENT WRITING AND ITS INFLUENCE 10­45 (1980).

See, e.g., M. GAGARIN, supra note 24, at 19; R. LOGAN, supra note 40, at 41; B. ULLMAN, supra note 40, at 46­58.

For example, the presence of scribes and the specialized uses of writing in ancient Greek culture did not supersede the oral techniques of preserving and recounting customs and traditions. See, e.g., ERIC A. HAVELOCK, PREFACE TO PLATO 117­18 (1963).

In his account of preliterate Greek culture, Professor Eric Havelock notes that "usage as it is recorded in the political, religious, or family sphere can itself often turn into a kind of technique.... [M]uch of social behaviour and deportment had to be ceremonial, or had to be recorded ceremonially, which may amount to very much the same thing." Id. at 80. Accounting for religious practice as an invented craft, Havelock explains that "Greek religion was a matter not of belief but of cult practice, and cult practice was composed of an accumulated mass of procedures which had to be performed skillfully in order to be performed dutifully and properly and piously." Id. at 81.

M.T. CLANCHY, FROM MEMORY TO WRITTEN RECORD: ENGLAND 1066­1307, at 203 (1979). According to Professor Clanchy, "William the Conqueror went one better and jokingly threatened to make one donee 'feel' the conveyance by dashing the symbolic knife through the recipient abbot's hand saying, 'That's the way land ought to be given."' Id.

See, e.g., MARC BLOCH, FEUDAL SOCIETY 113­14 (L.A. Manyon trans., 1961); M.T. CLANCHY, supra note 44, at 208; Berman, supra note 26, at 563.

M. BLOCH, supra note 45, at 114.

Berman, supra note 26, at 561; see also M.T. CLANCHY, supra note 44, at 232­33; J.E.A. JOLLIFFE, THE CONSTITUTIONAL HISTORY OF MEDIEVAL ENGLAND: FROM THE ENGLISH SETTLEMENT TO 1485, at 2­4, 9­10, 58­59 (4th ed. 1961); M.E. KATSH, supra note 2, at 60­63; F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 115­18 (H.A.L. Fisher ed., 1908). Oath­swearing is perhaps the most formalistic aspect of "oral law." See, e.g., id. at 115­16 ("[T]he swearer had to use exactly the right words, and a slip would be fatal to his cause.").

See note 47 supra.

Berman, supra note 26, at 562­63.

See, e.g., J.E.A. JOLLIFFE, supra note 47, at 23­24 ("Law is not in the king's mouth" but spoken by lawful men in the "folkmoots"); Berman, supra note 26, at 564­67. Like its trials by oaths, the oral culture's rules were often expressed in poetic ways. "Phrases like 'unbidden and unbought, so I with my eyes saw and with my ears heard,' 'foulness or fraud,' 'house and home,' 'right and righteous,' 'from hence or thence'­were common." Id. at 562.

See, e.g., 1 JAMES BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE 275­76 (1901); M. GAGARIN, supra note 24, at 10, 131.

See, e.g, F. COULMAS, supra note 38, at 11; M.T. Clanchy, Remembering the Past and the Good Old Law, 55 HISTORY 165, 168­70 (1970); see also M.E. KATSH, supra note 2, at 25 (explaining the consequences of using speech to pass on traditions in oral societies). Havelock posits that oral communication may have operated on three levels in ancient Greek society:

There would be the area of current legal and political transactions; the issuance of directives which would accumulate as precedents. Here the governing class bore the main responsibility for oral formulation of what was necessary. Then there would be the continual re­telling of the tribal history, the tale of the ancestors and how they behaved as models for the present. This historical task would be the special province of the minstrels. And finally there would be the continual indoctrination of the young in both tale and precedent through recital.

E. HAVELOCK, supra note 42, at 120­21. For a pathbreaking exploration of the classical art of memory that employed mnemonic techniques for rhetorical purposes, see FRANCES A. YATES, THE ART OF MEMORY (1966).

Nomos, the Greek word for law, may have originally signified an animal's "lair" or "haunt," but developed to mean socially sanctioned behavior. It "in fact represents both the force of usage and custom before it was written down, and also the statutory law of advanced Greek societies which was written down." E. HAVELOCK, supra note 42, at 63. Havelock observes that "in that treatise of Plato which carried the title Nomoi or Laws, the sense of solemn custom often prevails over that of statute." Id. at 62­63.

J.E.A. JOLLIFFE, supra note 47, at 13. The oral preservation of nomoi in Greek society was important to the survival of the group identity of the people:

[T]he tradition, the continuity of law, custom and usage must be maintained, or the scattered groups would disintegrate and their common tongue be lost. The essential vehicle of continuity supplied by a fresh and elaborate development of the oral style, whereby a whole way of life, and not simply the deeds of heroes, was to be held together and so rendered transmissible between the generations.

E. HAVELOCK, supra note 42, at 119 (footnote omitted).

Professor Ong astutely observes: "Oral utterance thus encourages a sense of continuity with life, a sense of participation, because it is itself participatory." W. ONG, INTERFACES, supra note 39, at 21.

Id. at 20.

See, e.g., F.W. MAITLAND, supra note 47, at 115­16; Berman, supra note 26, at 561­62 (oaths to be repeated "without slip or trip"). The purportedly rigid forms of oral pleading in illiterate societies, however, may be exaggerated. Clanchy suggests that formulaic oaths or pleas, "held in memory alone, ... probably did change in ways imperceptible to the users. Even in the earliest recorded pleadings changes took place ...." Clanchy, supra note 52, at 175. Clanchy draws a telling analogy between the remembrancer in the early Western oral cultures and the professional oral pleader in the English courts of the thirteenth century:

In the thirteenth century, and perhaps earlier, the litigant sometimes used a professional pleader to make the claim on his behalf. This pleader is described in French as a conteur and in Latin as a narrator. The claim is called a conte, a narratio, or a "tale" in English. So the pleader's art is described in the same terms as that of the medieval minstrel, the "singer of tales". This could be a coincidence. On the other hand it may indicate the pleader's original function as an illiterate remembrancer using the poetic technique of the singer of tales to recall the forms of his "tales" or pleadings and make them sound right. In the few surviving fragments of early English pleadings rhythmical and alliterative formulas are very evident.

Id. (footnotes omitted).

Professor Katsh argues that preliterate society was "conservative and hence profoundly antiprogressive when seen through the framework of our contemporary culture." M.E. KATSH, supra note 2, at 23. As qualified, the statement contains a measure of truth. Orality, however, provided a degree of flexibility in preliterate society that may have disappeared in the subsequent scribal and typographic eras.

In their penetrating work on the cultural traditions in preliterate societies, Professors Jack Goody and Ian Watt observe that such societies are "homeostatic" in the sense that their members tend to remember that which continues to be of social value, and to forget selectively that which ceases to be of contemporary relevance. Goody and Watt label this process the "social function of memory." Jack Goody & Ian Watt, The Consequences of Literacy, in LITERACY IN TRADITIONAL SOCIETIES 27, 30­34, 44 (Jack Goody ed., 1968); see JACK GOODY, THE INTERFACE BETWEEN THE WRITTEN AND THE ORAL 167­90 (1987) (discussing memory and learning in oral and literate cultures).

M.T. CLANCHY, supra note 44, at 233; see also Clanchy, supra note 52, at 165, 171­72, 176.

T. PLUCKNETT, supra note 1, at 308 (quoting RENE WEHRLE, DE LA COUTUME DANS LE DROIT CANONIQUE 139­40 (1928)).

See, e.g., F. COULMAS, supra note 38, at 11­12 (when memories are passed on to next generation, "legend and memory become indistinguishable"); Clanchy, supra note 52, at 162­68, 172.

See, e.g., M. BLOCH, supra note 45, at 114 ("[E]very act, especially if it was repeated three or four times, was likely to be transformed into a precedent­even if in the first instance it had been exceptional or even frankly unlawful."); E. HAVELOCK, supra note 42, at 121 ("The inhibition against new invention, to avoid placing any possible strain upon the memory, continually encouraged contemporary decisions to be framed as though they were also the acts and words of the ancestors."); FRITZ KERN, KINGSHIP AND LAW IN THE MIDDLE AGES 179 (S.B. Chrimes trans., 1939) (stating that customary law was a "perpetual grafting of new on to old law").

Clanchy, supra note 52, at 171.

Partly because early oral cultures did not rely on the letter of any legal text to regulate social behavior, notions of personal privilege and responsibility were not framed in terms of "individual rights and duties." See, e.g., J.E.A. JOLLIFFE, supra note 47, at 2­6 (explaining that because the actions of every man involve his kinsmen and invoke their responsibilities, "early law cannot and will not deal with the individual"); M.E. KATSH, supra note 2, at 232­34 (stating that the individual had value only as a member of some community or group); Berman, supra note 26, at 587 ("The bonds of kinship, of lordship units, and of territorial communities were the law.").

M. BLOCH, supra note 45, at 114. Describing the "genius of the oral memory" in ancient Greece, Havelock remarks: "The living memory preserves what is necessary for present life. It slowly discards what has become wholly irrelevant. Yet it prefers to remodel rather than discard. New information and new experience are continually grafted on to inherited models." E. HAVELOCK, supra note 42, at 122.

Berman, supra note 26, at 577 (footnote omitted).

See, e.g., KARL N. LLEWELLYN, THE BRAMBLE BUSH 79 (1951); WILLIAM L. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 92­93, 175­77 (1973) (stating that human behavior and customs form a central focus of his jurisprudence); Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621, 624­27 (1975) (explaining that the U.C.C.'s reliance on custom related to Llewellyn's view of "law as an articulation and regularization of unconsciously evolved mores"); see also Roger W. Kirst, Usage of Trade and Course of Dealing: Subversion of the UCC Theory, 1977 U. ILL. L.F. 811, 820­23 (discussing Llewellyn's role in drafting § 1­205 of UCC). Professor Dennis Patterson has observed:

For Llewellyn, then, the meaning of the agreement did not depend, in the first instance, on the existence or content of a writing. Instead, meaning derived from an interpretation of "language and by implication from other circumstances, including course of dealing or usage of trade or course of performance," considered together, each an aspect of the total context. The context, and not an a priori rule, determined the weight accorded any one aspect.

Dennis M. Patterson, Good Faith, Lender Liability, and Discretionary Acceleration: Of Llewellyn, Wittgenstein, and the Uniform Commercial Code, 68 TEX. L. REV. 169, 191 (1989) (footnotes omitted) (quoting U.C.C. § 1­ 201(3) (1989)); cf. Karl N. Llewellyn, What Price Contract?­An Essay in Perspective, 40 YALE L.J. 704, 747 (1931) (defending statute of frauds in light of customary acceptance of writing in business transactions, though allowing for exceptions).

WILLIAM SEAGLE, MEN OF LAW: FROM HAMMURABI TO HOLMES 12 (1947), quoted in M.E. KATSH, supra note 2, at 64.

By "scribal," we mean "writing" in the larger sense of recording alphabetized messages by any technology other than print and electronic means. See generally W. ONG, ORALITY, supra note 20, at 83­93. We use "scribal" and "chirographic" interchangeably.

That is, the reader cannot affect the writer at the point when the written word is enframed, although the reader will have an a posteriori effect on the writer as the written word is interpreted in the process of reading. See generally Walter J. Ong, Technological Development and Writer­Subject­Reader Immediacies, in ORAL AND WRITTEN COMMUNICATION: HISTORICAL APPROACHES 206 (Richard Leo Enos ed., 1990).

Goody and Watt argue that "writing establishes a different kind of relationship between the word and its referent, a relationship that is more general and more abstract, and less closely connected with the particularities of person, place and time, than obtains in oral communication." Goody & Watt, supra note 59, at 44; see also J. GOODY, supra note 59, at 75­76 (stating that written records strip away the individual and reveal general and universal relations).

See F. COULMAS, supra note 38, at 11­13; HAROLD A. INNIS, EMPIRE AND COMMUNICATIONS 7­11 (Univ. of Toronto 1972) (1950) (discussing the temporal and spatial aspects of media); M.E. KATSH, supra note 2, at 28, 63­67 (explaining how writing was a tool for acquiring power and how those in power resisted societal change); R. LOGAN, supra note 40, at 104­05 (discussing the model of abstraction provided by the alphabet); ROSAMOND MCKITTERICK, THE CAROLINGIANS AND THE WRITTEN WORD 36­37 (1989) (explaining how the Carolingians used the written word to supplement memory and to consolidate authority); MARSHALL MCLUHAN, THE GUTENBERG GALAXY: THE MAKING OF TYPOGRAPHIC MAN 238 (1962) (discussing the authoritative power of print); W. ONG, INTERFACES, supra note 39, at 21­22 (discussing the separation of "the word from man and man from the word" which necessarily takes place in both writing and print), 86­87 (discussing the informational advantage of treatises and how the availability of such treatises remade oral speech), 243 (discussing the shift in consciousness from past to present); W. ONG, ORALITY, supra note 20, at 101­12 (discussing writing's artificial, distancing effect), 177 (discussing writing as a "one­way informational street"); W. ONG, PRESENCE, supra note 20, at 35­ 47 (discussing temporal­spatial and distancing effects of alphabet and print).

See R. LOGAN, supra note 40, at 19­25; W. ONG, ORALITY, supra note 20, at 83­84.

See WARREN CHAPPELL, A SHORT HISTORY OF THE PRINTED WORD 59­83 (1970); ELIZABETH L. EISENSTEIN, THE PRINTING REVOLUTION IN EARLY MODERN EUROPE 12­13 (1983).

For a useful account of the history of early Greek writing and law, see M. GAGARIN, supra note 24, at 51­80.

Toward the end of the eleventh century, a manuscript of Justinian's laws was discovered in an Italian library. It compiled an enormous body of legal materials, consisting of four parts: the Codex (ordinances and decisions of the Roman emperors preceding Justinian), the Novellae (the laws of Justinian himself), the Institutiones (a textbook designed for Roman students of law), and the Digestum (opinions of Roman jurists on a variety of legal issues). See Berman, supra note 25, at 903­04. Medieval European legal scholars treated all of these writings as a single body of law, called the Corpus Juris Civilis. Id. at 904. The Corpus Juris Civilis became the canonical text for law study in the newly created law schools of Bologna, Paris, Oxford, and other universities. Id. at 900­07. By about 1150, there were some 10,000 to 13,000 students of Justinian's laws in Bologna. Id. at 900; see also CHARLES HOMER HASKINS, THE RENAISSANCE OF THE TWELFTH CENTURY 196­200, 208­10 (1927) (discussing the Corpus Juris Civilis, the jurist Irenrius and the Bologna law school, and the diffusion of Roman law throughout Western European universities); A. HOGUE, supra note 25, at 21­23. See generally JOHN CROOK, LAW AND LIFE OF ROME (1967).

As the Frankish kings in the regions under Carolingian rule were consolidating their powers, they recorded the "national" laws of the peoples. They included the Salian, Ripuarian, Alemannic, and Burgundian laws. See R. MCKITTERICK, supra note 73, at 37. These laws placed a novel emphasis on writing, rather than on oral witness, as proof of property transactions. Id. at 60­63. For example, the laws designated written records of transfers in lands, houses, forests, and slaves­whether by contract of sale, gift, or will­ as the alternative, yet often preferred, evidence to substantiate legal claims in court. Id. at 62­63. Similarly, a written charter typically was required to establish a bequest to the church. Id. at 23­75.

Henry I's Justiciar, Roger, Bishop of Salisbury, is credited with creating the first of the "Great Rolls of the Pipe" of the Exchequer in 1130. T. PLUCKNETT, supra note 1, at 15. Apparently, the Exchequer's pipe rolls became the model for the preservation of royal records in England. See id. Parchment membranes, approximately 12 by 24 inches in dimension, were used for writing on both sides. The top of a newly completed membrane was stitched to the bottom of the preceding membrane until some thirty membranes had been sewn together. The long strip was then rolled up and tied in a compact bundle. Among its advantages, the pipe roll could be stored easily and transported conveniently on packhorse over long distances. A. HOGUE, supra note 25, at 170­71. The plea rolls of the English Chancery date from about 1200. Id. The use of the plea roles in the Curia Regis (the king's court for matters involving his tenants­in­chief) began in 1194, and were the predecessors of the De Banco and Coram Regis rolls kept by the courts of Common Pleas (1234) and the King's Bench (1234) respectively. Id. at 143, 149; T. PLUCKNETT, supra note 1, at 150. In varying degrees, the rolls continued to be used for royal records until the early nineteenth century. Id. at 15.

The treatise of the Bolognese monk Gratian, A Concordance of Discordant Canons (circa 1140), was the first comprehensive and systematic legal treatise in Western European history. See e.g., Berman, supra note 25, at 921. Notably, Gratian's work postulated that customary practices (the province of orality) must yield to the written laws ("leges") and enactments ("constitutiones") of governmental and ecclesiastical authorities. Id. at 923.

In 1180, Ranulf Glanvill became Henry II's chief justiciar. See F.W. MAITLAND, supra note 47, at 13. He is credited with writing the treatise Glanvill: De Legibus (circa 1187), though Hubert Walter may have composed this small treatise, see T. PLUCKNETT, supra note 1, at 256. The treatise focused on the laws, procedures, and cases of the King's Court. Based entirely on a collection of writs, "[t]he high importance of this work lies in the fact that it settled the method of legal writing for many centuries to come. This method consists in giving a specimen form of writ current in the King's Court and adding to it a commentary." Id. at 256; see C.H. HASKINS, supra note 77, at 219­20; F.W. MAITLAND, supra note 47, at 13­14; T. Ellis Lewis, The History of Judicial Precedent, 46 LAW Q. REV. 207, 209 (1930).

Henry de Bracton served as a Judge of Assize, and as a Justice of Eyre of the King's Bench for a short period, during the reign of Henry III. His Notebook, on which he stopped working in 1256 and never completed, is a very selective collection of approximately 2000 cases categorized under various forms of pleading. The treatise traditionally attributed to Bracton, De Legibus et Consuetudinibus Angliae, drew on some 500 of these cases. This development was monumental, as few had access to the plea rolls that contained these cases and review of the plea rolls was cumbersome. See A. HOGUE, supra note 25, at 188­91; F.W. MAITLAND, supra note 47, at 17­18; T. PLUCKNETT, supra note 1, at 20, 258­67; Lewis, supra note 81, at 209­13. Bracton's works were "the first to seize upon the idea of decisions as a source of law. He pointed out the advisability of relying on cases, thus laying the foundations of judicial precedent." Id. at 212. Bracton is attributed with having established the tenet that "[i]f ... any new and unaccustomed cases shall emerge, and such as have not been usual in the realm, if, indeed any like cases should have occurred, let them be judged after a similar case, for it is a good occasion to proceed from like to like." 1 HENRY DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE (Sir Travers Twiss trans., Kraus 1964) (1878); see A. HOGUE, supra note 25, at 188­89. Even though he considered his cases to be the best evidence of valid legal principles, Bracton apparently did not expect them to be cited as precedents in English courts. T. PLUCKNETT, supra note 1, at 260; Lewis, supra note 81, at 212. Centuries later, the printing press revived interest in Bracton's works and established Bracton's position as a leading scholar of early English law. T. PLUCKNETT, supra note 1, at 263. Indeed, Professor Plucknett refers to Bracton as "'the flower and crown of English jurisprudence."' Id. at 258.

Modern scholars, however, have challenged Bracton's authorship of De Legibus et Consuetudinibus Angliae. See, e.g., J.H. BAKER, INTRODUCTION TO ENGLISH LEGAL HISTORY 201 n.2 (3d. ed. 1990).

See notes 96­99 infra and accompanying text.

See, e.g., F.W. MAITLAND, supra note 47, at 22; Lewis, supra note 81, at 207; cf. T. PLUCKNETT, supra note 1, at 273 (dating earliest "proto­Year Books" circa 1260 A.D.). The English Year Books, beginning during the reign of Edward I and continuing through the early sixteenth century, were penned by anonymous authors. They were initially recorded on single slips of parchment, subsequently produced as pamphlets, and eventually compiled in book form. Not case reports as we know them, the Year Books contained private notes about court cases taken by pleaders and apprentices. Originally, they focused on matters of procedure, but later covered a wider range of information, including substantive and anecdotal accounts. Id. at 269­73; Lewis, supra note 81, at 216­21. Apparently, the Year Books were not intended to be used as legal authorities having precedential value. See T. PLUCKNETT, supra note 1, at 272­ 73; Lewis, supra note 81, at 216­21. The Year Book manuscripts continued to 1535. See T. PLUCKNETT, supra note 1, at 273.

The historical correlation between the growth of literacy and writing, and the building of secular and ecclesiastical empires is not coincidental. See generally E. EISENSTEIN, supra note 75 (Carolingian empire); H. INNIS, supra note 73 (Egypt, Babylonia, Greece, Rome, Western Europe, Confucianism, Buddhism, Islam, Christianity).

See, e.g., HENRY PETROSKI, THE PENCIL: A HISTORY OF DESIGN AND CIRCUMSTANCE 3­35 (1990); Denise A. Troll, The Illiterate Mode of Written Communication: The Work of the Medieval Scribe, in ORAL AND WRITTEN COMMUNICATION: HISTORICAL APPROACHES, supra note 71, at 96, 99­101.

W. ONG, INTERFACES, supra note 39, at 234.

Id. at 240.

As Professor Brian Stock describes this phenomenon:

[T]he new use of texts is not merely "the graphic counterpart of speech." It has a structure and logical properties of its own. In societies functioning orally the advent of the written word can disrupt previous patterns of thought and action, often permanently.... When written models for conducting human affairs make their appearance, a new sort of relationship is set up between the guidelines and realities of behaviour: the presentation of self is less of a subjectively determined performance and more of an objectified pattern within articulated norms. One no longer responds through inherited principles handed down by word of mouth. The model is now exteriorized. Individual experience still counts, but its role is delimited; instead, loyalty and obedience are given to a more or less standardized set of rules which lie outside the sphere of influence of the person, the family, or the community.

BRIAN STOCK, THE IMPLICATIONS OF LITERACY: WRITTEN LANGUAGE AND MODELS OF INTERPRETATION IN THE ELEVENTH AND TWELFTH CENTURIES 18 (1983) (footnote omitted).

Goody and Watt observe that the early recording of previously oral cultural traditions in Greek society enabled two phenomena that had not been present to the same degree before literacy: a historical consciousness (i.e., an awareness of the past as different from the present) and a critical consciousness (i.e., a deliberate rejection and reinterpretation of social dogma to reconcile inconsistencies in inherited beliefs and conventions of understanding). See Goody & Watt, supra note 59, at 48, 56.

See F. COULMAS, supra note 38, at 13 ("Language becomes visible, and as such assumes a physical existence which can be investigated and consciously regulated. In speech language is in flux; in writing it is stable."); see also W. ONG, INTERFACES, supra note 39, at 86­87; W. ONG, ORALITY, supra note 20, at 105 (writing enables the development of canonical texts).

See, e.g., C. HASKINS, supra note 77, at 202­07 (scholastic dialectical analysis); B. STOCK, supra note 89, at 324 (the science of "rules" and "precepts" based on texts proposed by Hugh of St. Victor), 328­29 (scholasticism of medieval cathedral schools and nascent universities), 343 (Anselm's formulation of the scholastic questio), 404­06 (Abelard's application of the scientia interpretationis); Berman, supra note 25, at 916­17 (describing how Western European jurists of the eleventh and twelfth centuries derived "independent principles of universal validity" from Justinian's laws).

According to Stock, the intellectuals of the Middle Ages equated literacy with rationality: "By and large, literate culture in the Middle Ages assumed that it was the standard by which all cultural achievement should be measured, not only in literature itself, but also in law, philosophy, theology, and science." B. STOCK, supra note 89, at 31.

Id. at 18.

M.T. CLANCHY, supra note 44, at 210­14; see also THEODORE F.T. PLUCKNETT, STATUTES & THEIR INTERPRETATION IN THE FIRST HALF OF THE FOURTEENTH CENTURY 103 (1922) (discussing the ignorance among fourteenth century lawyers of written statutes).

M.T. CLANCHY, supra note 44, at 212­13.

See, e.g., id. at 14­17 (the 2000 administrative writs and royal charters extant from Anglo­Saxon England are a fraction of those extant from the period 1066­1307, particularly from the thirteenth century), 212 (preservation of Edward I's legislation in statute roles buttressed his reputation as "a great lawgiver"); A. HOGUE supra note 25, at 66­67; J.E.A. JOLLIFFE, supra note 47, at 334­39.

Even after written legislation became "more frequent, judges were often unaware of statutes relevant to cases and ignorant of what Parliament had done." M.E. KATSH, supra note 2, at 78 (footnote omitted).

See Clanchy, supra note 52, at 174.

See J.E.A. JOLLIFFE, supra note 47, at 304­05; Clanchy, supra note 52, at 174­75.

See text accompanying notes 89­92 supra.

See, e.g., M. BLOCH, supra note 45, at 115 (explaining how title­deeds were produced primarily to support oral testimony of the transfer of seisin in medieval Europe prior to the thirteenth century); M.T. CLANCHY, supra note 44, at 203.

M.T. CLANCHY, supra note 44, at 204.

See, e.g., id. at 220 (Once Henry II established the rule that a freeholder was not bound to respond in the royal court to a challenge against his holding unless there were a royal writ, "a document (a royal writ), instead of a voice, became the basis of legal procedure for all important land transactions in seignoral courts as well as royal ones.") (footnote omitted); A. HOGUE, supra note 25, at 12­13 (stating that the number of writs maintained in the Register of Writs increased from about 39 in the time of Glanvill (circa 1189) to more than 400 in Edward I's reign (1272­1307)), 196 (discussing the Register of Writs); J.E.A. JOLLIFFE, supra note 47, at 208 ("no action for free tenement [could] be entertained [in Henry II's courts] without King's writ"), 260; R.C. VAN CAENEGEM, THE BIRTH OF THE ENGLISH COMMON LAW 29­32, 34­35, 57 (1973).

See, e.g., 3 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 615­19 (3d ed. 1923) (formality, certainty, and verbal precision required in thirteenth and post­thirteenth century written indictments); J.E.A. JOLLIFFE, supra note 47, at 209 (describing the 1166 Assize of Clarendon requirement of criminal presentment by an oath taken by twelve men); R.C. VAN CAENEGEM, supra note 103, at 40­41 (discussing Henry II's assizes).

M.T. CLANCHY, supra note 44, at 175; 3 W.S. HOLDSWORTH, supra note 104, at 633 (rules of pleading tailored to oral presentation), 634­35 (advantage of oral pleading over later system of written pleadings), 642­43 (increasing formalism in the writ system undermined oral system of pleading), 644­45 (although pleas were put into writing, judges required pleadings to be settled by oral discussion at the bar); Clanchy, supra note 52, at 175 (stating that a legal claim is called a conte (French), narratio (Latin), or tale (English), signifying that the oral pleader's art was the "singer of tales").

Significantly, in English history the very notion of an attorney derived from, and for a long time remained linked to, the medium of writing. In the courts of Edward I and his descendants, both an attorney and a narrator represented the litigant. See M.T. CLANCHY, supra note 44, at 222. The attorney determined the legal theory of the case and wrote the pleadings, whereas the narrator conducted the case in court. Id. In time, these distinct functions evolved into professional differences between serjeants­at­law or barristers who were called to the bar, and solicitors. Id.; see W.S. HOLDSWORTH, supra note 104, at 654.

Clanchy summarizes the development from oral to written evidence in his observation:

In the twelfth century to "record" something meant to bear oral witness, not to produce a document.... The spoken word was the legally valid record and was superior to any document.... It is evident that the knights convey the record orally, as the parties to the plea are ordered to come to "hear the record"....

... This change, from an oral to a predominantly written procedure, appears to have occurred in John's reign.... The clearest instance of how "record" now meant a document occurs in a ... case in 1227. Four knights from the Essex county court appeared at Westminster and "brought the record and judgment, expressed in writing, under this form". Details of the case then follow, which have evidently been copied down by the clerk compiling the plea roll from the document handed in to the court by knights, as he does not note everything, but says that the rest "is more fully contained in the record".

M.T. CLANCHY, supra note 44, at 56­57 (footnote omitted); see also R. MCKITTERICK, supra note 73, at 62­75 (explaining how, in courts of Carolingian empire, growing numbers of written charters established record and proof of property ownership).

See, e.g., A. HOGUE, supra note 25, at 171, 189­91 (discussing the reliance on professional memory to invoke prior cases since citation of precedent in the modern sense is only possible in the age of print); F.W. MAITLAND, supra note 47, at 22, 210; T. PLUCKNETT, supra note 1, at 344­45; Lewis, supra note 81, at 207, 215­20.

See, e.g., GEORGES DUBY, RURAL ECONOMY AND COUNTRY LIFE IN THE MEDIEVAL WEST 61 (Cynthia Postan trans., 1968); A. HOGUE, supra note 25, at 179­88; T. PLUCKNETT, supra note 1, at 307­14; E.K. Braybrooke, Custom as a Source of English Law, 50 MICH. L. REV. 71 (1951).

M. BLOCH, supra note 45, at 111; A. HOGUE, supra note 25, at 191; M. KATSH, supra note 2, at 71, 78; T. PLUCKNETT, supra note 1, at 347.

M.T. CLANCHY, supra note 44, at 211.

Id.

See id. at 208­09.

Id. at 209. According to Professor David Linton, William Shakespeare, writing a century after the invention of print, projected the skepticism and resistance that still surrounded writing, whether in scribal or typographic form. In an imaginative essay, Linton calls our attention to the subplot contained in one act of Henry VI, Part Two. He notes that as Shakespeare introduces Jack Cade, the commoner who actually led a citizens' revolt against the English government in 1450 (within a few years of Gutenberg's invention), he characterizes "the Cade rebellion as a protest against writing and the printing press." Linton states:

We meet Cade as he and his followers are discussing what they'll do when they take over the government. One of his comrades says: "The first thing we do, let's kill all the lawyers."

Cade replies:

"Nay, that I mean to do. Is not this a lamentable thing that of the skin of an innocent lamb should be made parchment? That parchment, being scribbled o'er, should undo a man? Some say the bee stings, but I say 'tis the bee's wax. For I did but seal once to a thing, and I was never mine own man since. How now? Who's there?"

Another rebel enters, bringing in the Clerk of Chatham, and says, "The Clerk of Chatham­he can write and read ...." Cade says: "O monstrous!" Then he asks him, "Dost thou use to write thy name? Or hast thou a mark to thyself like an honest plain­dealing man?"

The Clerk answers, "Sir, I thank God I have been so well brought up that I can write my name."

The crowd shouts, "He hath confessed­away with him! He's a villain and a traitor."

Cade adds, "Away with him, I say, hand him with his pen and inkhorn about his neck."

Later, the rebels begin to take the city of London and Cade says: "Away! Burn all the records of the realm. My mouth shall be the Parliament of England." Then a noble, Lord Saye, and his son­in­law are captured and brought before Cade who accuses him as follows: "... Thou has most traitorously corrupted the youth of the realm in erecting a grammar school; and, whereas before, our forefathers had no other books but the score and the tally, thou hast caused printing to be used and, contrary to the King his crown and dignity, thou hast built a paper­mill. It will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb and such abominable words as no Christian ear can endure to hear.

David Linton, Enter Hamlet, Reading, 17­19 (1989) (unpublished manuscript on file with the Stanford Law Review) (quoting WILLIAM SHAKESPEARE, THE SECOND PART OF KING HENRY THE SIXTH, act 4, scs. 2 & 7 in WILLIAM SHAKESPEARE: THE COMPLETE WORKS 63 (Stanley Wells & Gary Taylor eds., 1986)) (citations omitted)).

See, e.g., Steven Rowan, Jurists and the Printing Press in Germany: The First Century, in PRINT AND CULTURE IN THE RENAISSANCE 74 (Gerald P. Tyson & Sylvia S. Wagonheim eds., 1986) (describing how manuscript culture persisted and flourished alongside print culture in European jurisprudence through the nineteenth century).

This, of course, is a matter for another article examining the history, future, function, and jurisprudential meaning of the signature in law.

See W. CHAPPELL, supra note 75, at 59­64.

Entick v. Carrington, 19 Howell's St. Tr. 1029, 1066 (Michaelmas Term, 1765).

The attributes of print enumerated in this paragraph are characterized primarily from the perspective of electronic reality as it is enframed by paratexts. This relativistic stance necessarily draws on our prior explanation of the terms "reality" and "enframing." See notes 5 & 19 supra and accompanying texts.

W. ONG, INTERFACES, supra note 39, at 239.

See Ronald K.L. Collins, Language, History and the Legal Process: A Profile of the "Reasonable Man", 8 RUTGERS L.J. 311, 311­15 (1977).

Ong posits that "[a] new medium of verbal communication not only does not wipe out the old, but actually reinforces the older medium or media. However, in doing so it transforms the old, so that the older is no longer what it used to be." W. ONG, INTERFACES, supra note 39, at 82­83; see also id. at 90.

See F. COULMAS, supra note 38, at 11­14 (mass production, abstraction, control); E. EISENSTEIN, supra note 75, at 51 (mass production and uniformity), 63 (systematization and abstraction), 72 (systematization), 73­74 (reliability and authority), 79­80 (mass production and preservation), 83 (permanence); M.E. KATSH, supra note 2, at 33­35 (realibility, authority, and mass production), 85­86 (systematization), 215 (uniformity), 217­18 (abstraction); M. MCLUHAN, supra note 73, at 125 (permanence), 156 (certainty and authority), 208­09 (uniformity); W. ONG, INTERFACES, supra note 39, at 89 (control), 330­32 (closure); W. ONG, ORALITY, supra note 20, at 101­02 (systematization), 117­38 (closure, systematization, control, and abstraction); W. ONG, PRESENCE, supra note 20, at 47­53 (mass production, systematization), 63­66 (abstraction).

See E. EISENSTEIN, supra note 75, at 71.

See Howard Jay Graham, "Our Tong Maternall Maruellously Amendyd and Augmentyd": The First Englishing and Printing of the Medieval Statutes at Large, 1530­1533, 13 UCLA L. REV. 58, 58­59 (1965).

See id. at 59­60.

Dyer was one of the first reporters after the Year Book period. T. PLUCKNETT, supra note 1, at 280.

Plowden's reports covered almost exactly the same period as Dyer's and were considered "highly authoritative." Id.

Plucknett notes that the 13 volumes of Coke's Reports, so highly regarded that they were cited simply as The Reports, synthesized and organized the principles of English law as they arose from the cases Coke observed. Id. The report of each case thoroughly summarized all relevant legal authority to date. Even in Coke's day, however, the case report mingled presentation of the facts and law with commentary, criticism, and legal history. Id. at 280­81.

The publication of Burrow's Reports established the format for official reporting. His reports "discriminat[ed] between facts, arguments and decision," see id. at 281, a form that still exists in the contemporary first year law student's case brief.

Among the first English treatises on legal philosophy, the work of the English barrister Christopher St. Germain (1460­1540) was one of the most important. Apparently published in Latin in 1523, St. Germain's book was published again in English in 1530. A criticism of the common law, the treatise is most notable for its discussion of notions of equity in English legal thought. Id. at 279.

Issued in 1628 (First Institute), 1642 (Second Institute), and 1644 (Third Institute and Fourth Institute), Coke's works "embodied the bulk of English law in the form of decisions, or comments upon decisions." Id. at 282.

William Blackstone's Commentaries has been called "a great, readable, reasonable book about English law as a whole." Id. at 286. In his work, Blackstone "attempt[ed] to explain and justify the common law in the eyes of the laity." Id. Partly because the Blackstone's treatise organized a mass of legal materials, doctrines, and concepts in one book, his work traveled to eighteenth­century America and was especially influential there. Id. at 287.

Id. at 263.

See E. EISENSTEIN, supra note 75, at 83 ("It was no longer possible to take for granted that one was following 'immemorial custom' .... Struggles over the right to establish precedents became more intense as each precedent became more permanent and hence more difficult to break."); see also M.E. KATSH, supra note 2, at 87 (discussing the increased business for common law courts and a growing attention to rule­oriented solutions). But cf. T. PLUCKNETT, supra note 1, at 349 (explaining that, although the printing of the sixteenth­century case reporters increased the number of citations to cases, precedent was not generally treated as binding authority until the 1800s).

H. INNIS, supra note 20, at 31.

A.G. DICKENS, REFORMATION AND SOCIETY IN SIXTEENTH­CENTURY EUROPE 51 (1966). For additional discussion of this point, see WILLIAM J. BOUWSMA, JOHN CALVIN: A SIXTEENTH­CENTURY PORTRAIT 98­100 (1988); E. EISENSTEIN, supra note 75, at 147; H.G. HAILE, LUTHER: AN EXPERIMENT IN BIOGRAPHY 164­74 (1980); R. LOGAN, supra note 40, at 217­23; Ronald K.L. Collins, Writing on Writing: A Typographic Guide to McLuhan's Gutenberg Galaxy, 20­24 (1988) (unpublished manuscript on file with the Stanford Law Review).

An Act for the Prevention of Frauds and Perjuries, 29 Car. 2, ch. 3 (1677) (Eng.).

The preamble of the Statute of Frauds reads: "For prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury or subordination of perjury, be it enacted ...." Id.

Charles W. Hawkins, Where, Why and When Was the Statute of Frauds Enacted?, 54 AM. U. L. REV. 867, 872 (1920); see also JOHN EDWARD MURRAY, JR., MURRAY ON CONTRACTS § 68, at 301 (3d ed. 1990); Philip Hamburger, The Conveyancing Purposes of the Statute of Frauds, 27 AM. J. LEGAL HIST. 354, 356­ 57, 372­73 (1983).

Hotchkiss v. National City Bank of N.Y., 200 F. 287, 293 (S.D.N.Y. 1911) (Judge Learned Hand's religious reference occurred in his discussion of objective versus subjective approach to contract law).

See generally 2 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 275 (1963 & Supp. 1991); Hugh Evander Willis, The Statute of Frauds­A Legal Anachronism (pts. 1 & 2), 3 IND. L.J. 427 & 528 (1928).

The same principle operates in the legislative context when custom and tradition give way to printed codes of behavior.

Professor Charles Collier relates the notions of precedent and legal authority in Anglo­American jurisprudence to the exegetical method of analysis that characterized medieval European scholasticism. Charles W. Collier, Precedent and Legal Authority: A Critical History, 1988 WIS. L. REV. 771, 805­16; see also text accompanying notes 74­86 supra.

Law in print substantially eliminates the open­ended variables associated with the context of the "reality" it regulates. The same point applies to the writing of this article. Were you to view a video of us as we wrote this section, you would learn much, perhaps more than we prefer, about the revealing but never recorded aspects of our thinking.

See Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205 (1979); cf. NEIL POSTMAN, AMUSING OURSELVES TO DEATH 57 (1984) (referring to United States Supreme Court Chief Justice John Marshall as the "Typographic Man").

In his preface to Blackstone's Commentaries, Charles Haar points out that the American case reports from 1787 to 1890 contain over 6400 references to Blackstone, whom American judges had quoted more than any other legal scholar. Charles Haar, Preface to WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND at xxi, xxiii (1962).

According to Ong, "secondary orality" is the orality of the electronic era, whereby verbal messages are communicated by telephone, radio, television, or various kinds of audio­visual recordings. W. ONG, ORALITY, supra note 20, at 136. As we use the term, "secondary orality" encompasses the secondary aurality and secondary visuality that are part of the secondary context captured in paratexts. For a description of "primary orality," see text accompanying note 39 supra.

The oral and visual aspects of a legal transaction in an oral culture could not be replayed at a subsequent point in time, whereas such audio­ visuality is reproducible in paratexts.

In the future, electronic formats are more likely to converge, such that video and computer technologies will interact in all of their applications. See, e.g., John Markoff, Personal Computers Gaining TV's Power of Image and Sound, N.Y. TIMES, Sept. 12, 1989, at A1 (relating various methods by which television and computers may interact); Brenton R. Schlender, Couch Potatoes! Now It's Smart TV, FORTUNE, Nov. 20, 1989, at 111 (explaining the Frox company's entertainment system that combines television, videocassette recorder, stereo, computer, telephone, and fax capacities).

For a general insight into the imagistic and metaphorical aspects of photography, see ROLAND BARTHES, CAMERA LUCIDA (1981).

See M. MCLUHAN, supra note 73, at 239.

In the words of a video producer for a San Francisco company that supplies video services to attorneys, "Video is effective because it's a warm media [sic] .... When there are human issues involved, human emotions, video is warmer, more accessible, than print." Peter Stack, New Uses for Video­It's Everywhere, S.F. CHRON., June 30, 1989, at E1, E10.

Cf. W. ONG, INTERFACES, supra note 39, at 248.

Professor Franco Ferrarotti distinguishes print logic and "visual logic" as implicating two different senses of "truth":

Here there emerges the question of the two truths: truth as precision, quantitatively measured and expressed, and truth as internal awareness and mastery of experience. The future of technically advanced societies depends on the practical and theoretical way of posing and resolving the tension that runs between these two basic conceptions of truth.

FRANCO FERRAROTTI, THE END OF CONVERSATION: THE IMPACT OF MASS MEDIA ON MODERN SOCIETY 136 (1988). We develop this and related points in our forthcoming book, The Death of Discourse.

See M. MCLUHAN, supra note 73, at 3 ("In the electronic age which succeeds the typographic and mechanical era of the past five hundred years, we encounter new shapes and structures of human interdependence and of expression which are 'oral' in form even when the components of the situation may be non­ verbal."); see also MARSHALL MCLUHAN & BRUCE R. POWERS, THE GLOBAL VILLAGE 18­ 19 (1989); MARSHALL MCLUHAN & ERIC MCLUHAN, LAWS OF MEDIA: THE NEW SCIENCE 158­59, 228 (1988); MARSHALL MCLUHAN: THE MAN AND HIS MESSAGE 209 (George Sanderson & Frank Macdonald eds., 1989).

See generally MARSHALL MCLUHAN, UNDERSTANDING MEDIA: THE EXTENSIONS OF MAN 158 (1964).

The printed record treats as legally irrelevant many facts and impressions that it does not or cannot enframe. The same facts and impressions, when enframed by paratexts, may not necessarily be treated as legally irrelevant.

Irving R. Kaufman, The Creative Process and Libel, N.Y. TIMES, Apr. 5, 1987, § 6 (Magazine), at 28, 35.

Skeptics should consider this anecdotal account of "mistranslation" in a printed trial transcript told by Chief Justice Robert F. Stephens of the Kentucky Supreme Court:

In reply to a survey conducted by the National Center for State Courts, a Louisville attorney described a problem encountered with a transcript. A key question at trial went as follows:

Q: "And you weren't gone for anymore [sic] than five minutes?"
A: "No more than five minutes."

The court reporter transcribed the answer as follows:
A: "No, more than five minutes."

Robert F. Stephens, Dispelling the Myths and Fables About CATS v. Video, LOUISVILLE LAW., Winter 1990, at 10. The attorney questionnaire to which Chief Justice Stephens refers contains the following observation: "The comma­which totally changes the answer­was inappropriate. With video, we could have judged this answer and realized what was intended instead of having to wonder two years later." W. HEWITT, supra note 4, at 50 (quoting NCSC study survey response Q. 2082). Interestingly, Chief Justice Stephens characterizes the conventional court reporter's transcripts as "hearsay." See Stephens, supra at 10. Compared with a video record, a printed transcript is more prone to the inaccuracies associated with hearsay evidence. Because a reporter's encoded shorthand record must be decoded to prepare the printed transcription, the accuracy of a written legal narrative relies on the reporter's judgment. See W. HEWITT, supra note 4, at 49 ("[The final trial transcript] has been twice filtered through the intelligent discrimination of the court reporter­first when the information is encoded in the shorthand notes taken in the courtroom and again when the shorthand notes are decoded into the transcript.").

Professor Melinda Branscomb illustrates this point with an amusing example. As Branscomb recalls: "I was befuddled once upon receiving a trial transcript, where a witness supposedly had referred several times to the case in 'the inner lobby.' I finally realized the court reporter wasn't familiar with 'the NLRB."' Conversation with Professor Melinda Branscomb, University of Puget Sound Law School (August, 1991).

Admittedly, if the court hired a bilingual stenographer, or employed two stenographers (one to record the English­speaking expert's testimony and the other to record that of the non­English­speaking defendant), perhaps the mistranslation problem in this hypothetical could be cured without electronic means. Administrative and financial limitations, however, typically prevent the use of either alternative.

Not surprisingly, shorthand reporters' associations (whose members fear their profession will become obsolete), attorneys who balk at reviewing videotapes when preparing appellate briefs, and some appellate judges who wish to avoid searching for isolated points of error among reels of videotape, have voiced the strongest objections to videotaping trials. See, e.g., W. HEWITT, supra note 4, at 20, 23­24, 54­59; Andrew Blum, Videotape Project Criticized in Kentucky, NAT'L L.J., July 24, 1989, at 3, 3, 41 ("'It's impossible to watch two weeks of a trial in trying to write a brief,' added [one attorney who] noted, however, that taping works fine in some trials, such as divorce proceedings, where testimony is not so complex."); Haas, supra note 15, at 2­3; Taylor, supra note 15, at 4­5; Letter from Frank W. Heft, Jr. and J. David Niehaus, Jefferson City Public Defenders, to David Green, Jefferson Audio Visual System, Louisville, Kentucky 3 (May 25, 1989) (on file with the Stanford Law Review):

The biggest disadvantage to the use of videotape records on appeal is that they inevitably take longer to review than a transcript of evidence.

... [G]iven our caseload, it is unlikely that we will be able to file briefs within the thirty day time period if the record on appeal is comprised of three or more videotapes.

Of course, in the appellate process, any difficulties with videotaped records hinge on the existing state of technology of video playback, the level of awareness within bench and bar of the playback equipment available, and what constitute favorable circumstances for videotaping (for example, the recording equipment and conditions that permit the production of a clear picture and sound). See, e.g., W. HEWITT, supra note 4, at 57:

[T]he problems associated with working with videotapes may be substantially alleviated by improved technology and new work habits. While experienced lawyers strongly resist changing their familiar work patterns, new lawyers who start their careers with video recording may experience to a lesser degree the frustrations expressed by other lawyers, particularly with better equipment for replay.

See also Haas, supra note 15, at 3 ("Vendors are quickly working to make hardware changes to eliminate problems. Tapes can be reviewed at higher speeds, with voice modulation remaining near normal, special on­screen counters allow for finding points of error quickly."); Letter from Frank Heft & J. David Niehaus to David Green, supra at 4 ("[T]he prototype VCR which you have loaned to us has the capability of searching the videotape record in fifteen minute increments of time.... We have found this type of program to be extremely beneficial."). The nationwide study of videotaped trial records conducted by the NCSC determined that attorneys who "lack information about what kind of equipment is available to improve the quality of the sound during playback and to reduce the time it takes them to review videotapes" often held negative opinions about videotaped records. W. HEWITT, supra note 4, at 23­24.

Despite their objections, critics admit that videotaped trial accounts are as complete and reliable as printed transcripts. The Director of Research and Technology at the National Shorthand Reporters Association, Jill Wilson, concedes that videotaping does "capture the record quite effectively." Cheryl Frank, Video in Court, A.B.A. J., Nov. 1985, at 26. Moreover, the NCSC study reports that videotaped trial records have no statistically significant effects on overall appellate case processing time in Kentucky, the only state with sufficient experience to measure the effects of video recording on the timeliness of the appeals processes. See W. HEWITT, supra note 4, at 66 ("The nine appellate judges in Kentucky who were interviewed reported that they are not taking any longer overall to complete their work on cases."). Furthermore,

The available data from Louisville confirm the expected decrease in the time to prepare the record of the appeal but do not indicate that there are any offsetting increases in the time to prepare briefs or in the deliberation stage of the appellate process, as some lawyers and judges have predicted.

Id. at 78.

Taylor, supra note 15, at 1 ("[V]ideo is rapidly becoming the system of choice in Kentucky, with thirty of the ninety potential courts now using it.").

In 1988, Kentucky's videotaping system won an award from the National Committee on Innovations of the Kennedy School of Government at Harvard University. In his address to the Committee, Kentucky Supreme Court Chief Justice Robert Stephens explained the three objectives served by videotaped court records:

What are the three major complaints from the public today about the court system? Cost, delay and quality of justice.

We in the Kentucky courts ... have developed a court reporting system that, significantly and positively, impacts all three­it is cost effective for both the courts and the litigants, time efficient, and, above all, it substantially­visibly­improves the quality of the trial transcript, and with it the quality of justice.

Robert F. Stephans, Speech to the National Committee on Inovations, Kennedy School of Government, Harvard University, quoted in W. HEWITT, supra note 4, at 5. In its application to the Committee, Kentucky substantiated the objectives of reducing cost and delay with the following important facts:

* Reduce costs to litigants by eliminating costly transcripts. Costs to the state (and taxpayer) for [indigent] transcripts are also reduced. Transcripts cost $2­$3 per page, while a six­hour videotape copy costs $15.

* Reduce delay by eliminating the time court reporters take to prepare the transcript. Attorneys have access to the tape at the close of each day's session of court and, if an appeal is contemplated, they can begin to work with the record immediately. Typically, transcripts take 60­120 days to produce.

National Committee on Innovations, Kennedy School of Government, Harvard University, Application from the Commonwealth of Kentucky, Kentucky Court of Justice (April 1, 1988), quoted in W. HEWITT, supra note 4, at 54­55; see also id. at 59­70 (comparative costs for video recording and traditional court reporting of trial proceedings), 71­79 (comparative availability of video and printed records); Karen Klages, Court Reporters on Way Out?, A.B.A. J., Feb. 1989, at 28 ("In Kentucky, for instance, litigants pay upwards of $450 to obtain a written transcript of one day in court, and that may take weeks or even months to receive."); Reuben, supra note 15, at 1 ("Talking dollars and cents, [Don Cetrulo, director of the administrative office of the Courts of Kentucky] said the national average for the reporting of a court trial runs approximately $750 a day, while a day's trial activities can generally be recorded on video for about $15, outside of initial system costs."); Taylor, supra note 15, at 3 (ability to conduct necessary trial matters "after hours" without paying overtime salaries to court reporters); Letter from Frank Heft & J. David Neihaus to David Green, supra note 160, at 1­2 (the use of videotape records on appeal has streamlined the certification process).

The third, and arguably most important, benefit is the conviction that videotaped trial records improve the quality of justice rendered by the appellate process. Kentucky court administrative director Don Cetrulo claims that the video system "has proven popular with Kentucky trial judges because, in their eyes, it ensures that appeals court judges reviewing their rulings 'will see the same trial they saw."' Reuben, supra note 15, at 24. Noting the video record's ability to capture the appearance and demeanor of witnesses and litigants, Cetrulo believes that the appellate judges are given "a complete account of proceedings, including important audio and visual detail that written transcripts cannot convey." Klages, supra, at 29. Heft and Niehaus also praise Kentucky's system:

The videotape undoubtedly brings a trial or a court proceeding to life. It is capable of recreating the tenor and atmosphere in a courtroom that cannot be captured on the pages of a transcript. Seeing and hearing what actually happens in a courtroom necessarily gives the viewer a more accurate understanding of precisely what occurred than the words printed in a transcript.

Letter from Frank Heft and J. David Niehaus to David Greed, supra note 160, at 5; see also W. HEWITT, supra note 4, at 89 ("appellate judges also reported that occasions arise when the specific issue they are asked to rule on is preserved in the video record but is not preserved, or not preserved as effectively, in a narrative record").

For example, the proceedings of state high courts are being videotaped and stored in video libraries such as those at Florida State University College of Law. See Frank, supra note 160, at 26; see also Paul J. Mastrangelo, A Supreme Court Mediagraphy, 78 LAW LIBR. J. 279 (1986) (listing electronic media materials concerning the U.S. Supreme Court and its justices). This development could mean that videotaped high court proceedings will soon become relevant in the interpretation of written opinions.

See, e.g., Blum, supra note 160, at 41 ("Despite the criticism the [Kentucky] taping program has drawn, the state will not turn back, says Don P. Cetrulo, director of Kentucky's Administrative Office of Courts. 'I can't believe anyone thinks there will be court reporters in the year 2000. You've got to get started."'); Stuart Eskenazi, Expanded Videotaping of Court Proceedings Debated, TACOMA MORNING NEWS TRIB., Sept. 9, 1988, at B6 (Washington State Supreme Court Chief Justice Dolliver recognized that videotaping could become standard operating procedure in state court trials if it proves to be efficient, thereby eliminating most of the work of a court reporter.).

Beyer & Buckley, supra note 6, at 69. The Indiana statute reads as follows:

(c) Subject to the applicable Indiana Rules of Trial Procedure, a videotape may be admissible as evidence of the following:
    (1) The proper execution of a will.
    (2) The intentions of a testator.
    (3) The mental state or capacity of a testator.
    (4) The authenticity of a will.
    (5) Matters that are determined by a court to be relevant to the probate of a will.

IND. CODE ANN. § 29­1­5­3(c) (West Supp. 1990).

See Beyer & Buckley, supra note 6, at 47 n.22 (listing cases in which videotape was used in a probate action).

See, e.g., Beyer & Buckley, supra note 6; Gerry Wayne Beyer, Videotaping the Will Execution Ceremony­Preventing Frustration of the Testator's Final Wishes, 15 ST. MARY'S L.J. 1 (1983); William R. Buckley, Indiana's New Videotaped Wills Statute: Launching Probate into the 21st Century, 20 VAL. U. L. REV. 83 (1985); Jodi Granite Nash, A Videowill: Safe and Sure, 70 A.B.A. J., Oct. 1984, at 87; John A. Warnick, The Ungrateful Living: An Estate Planner's Nightmare­The Trial Attorney's Dream, 24 LAND & WATER L. REV. 401, 423­24 (1989).

Ron Gasbarro, Your Last Will and ... Videotape, WASH. POST, Jan. 12, 1990, at D5.

UNIF. PROB. CODE § 2­502, 8 U.L.A. 106­07 (1989). The Code does, however, provide that a will is also valid if it is executed in accordance with the law of the place of execution or the law of the place where the testator is domiciled. Id. § 2­506, 8 U.L.A. 116.

This question may be answered either directly by a specific definition of "writing" in a state's probate code, or collaterally by reference to the state's evidentiary code defining the term. For example, the California Evidence Code defines "writing" to mean "handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof." CAL. EVID. CODE § 250 (West 1966). The Law Revision Commission comments to this section indicate that this term was purposefully defined broadly enough "to include all forms of tangible expression, including pictures and sound recordings," and, presumably, videotapes. Id. Law Revision Commission comt.; see also People v. Moran, 39 Cal. App. 3d 398, 114 Cal. Rptr 413 (1974) (interpreting the definition of "writing" in this section to include videotapes).

Whereas "strict construction" of wills emphasizes the written word and confines interpretation to the "plain meaning" of the words found within "the four corners of the instrument," a more "liberal construction" emphasizes the testator's intent as the primary determinant and thus allows extrinsic evidence of that intent. THOMAS E. ATKINSON, HANDBOOK OF THE LAW OF WILLS 808­09 (2d ed. 1953); see also WILLIAM M. MCGOVERN, JR., SHELDON F. KURTZ & JAN ELLEN REIN, WILLS, TRUSTS AND ESTATES §§ 4.1­.4, 6.1, 7.6 (1988) (explaining formal requirements and the use of extrinsic evidence).

William R. Buckley & Alfred W. Buckley, Videotaping Wills: A New Frontier in Estate Planning, 11 OHIO N.U. L. REV. 271, 280 (1984).

See J.E. MURRAY, JR., supra note 139, § 84, at 389 (3d ed. 1990) ("In terms of the recorded American cases, it is clear that the Williston test ... is the dominant, common law test in American case law.") (footnotes omitted); cf. 2 E. ALLAN FARNSWORTH, FARNSWORTH ON CONTRACTS § 7.2 (2d ed. 1990) (discussing the parol evidence rule).

See, e.g., 4 SAMUEL WILLISTON, A TREATISE ON THE LAW OF CONTRACTS § 633, at 1014­16 (Walter H.E. Haeger ed, 3d ed. 1961).

J.E. MURRAY, JR., supra note 139, § 84, at 389.

3 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS § 581, at 441­42 (1961).

Gianni v. R. Russell & Co., 281 Pa. 320, 126 A. 791 (1924) (in action over terms of lease, plaintiff could not introduce extrinsic evidence to prove existence of additional agreement concerning terms of lease, when written lease dealt with same subject matter but did not explicitly contain additional agreement).

CHARLES E. O'HARA, FUNDAMENTALS OF CRIMINAL INVESTIGATION 101 (1st ed. 1956).

YALE KAMISAR, POLICE INTERROGATION AND CONFESSIONS: ESSAYS IN LAW AND POLICY 133­35 (1980).

G. JOSEPH, supra note 6, at § 5­23 (footnote omitted). In this regard, Professor Kamisar has observed correctly: The problem may not be the unwillingness of the police to use tape recordings as much as the reluctance to offer the tapes in evidence. In an unknown but considerable number of cases the police may tape­record an interrogation for their own purposes, but with no intent to offer it in evidence (as opposed to the resulting confession itself) and with no expectation that it will ever get beyond the confines of the stationhouse.

Y. KAMISAR, supra note 179, at 134 n.23.

In her study of the evidentiary use of videotape in Britain, barrister Sybil Sharpe contends: "Ultimately, every police station in England and Wales will tape record interviews with suspects." S. SHARPE, supra note 6, at 84.

For example, in the recent and widely publicized case of the alleged gang rape and beating of a Central Park jogger, the prosecution introduced a 33 minute videotape of a 16­year old defendant confessing to his part in the attack. He recalled how the jogger was repeatedly raped, kicked, and struck with a lead pipe. Both the prosecution and defense attorneys regarded the videotape as the most incriminating evidence seen during the four weeks of testimony for the state. To convince the jury that the confession was not coerced, the prosecutor simply pointed out that, as the videotape displayed, the defendant's parents were beside him during the confession as the prosecutor carefully read him his rights. Ronald Sullivan, Taped Confession Played at Jogger Trial, N.Y. TIMES, July 19, 1990, at B3.

Stephan v. State, 711 P.2d 1156 (Alaska 1985).

Id.

Id. at 1159­60. A 1988 British Home Office Research Report revealed that "a larger number of confessions are obtained in taped rather than untaped interviews. Further, the frequency with which such information is given about other offences during interviews is also increased with taping." S. SHARPE, supra note 6, at 85.

For a description of day­in­the­life presentations and a discussion of the issues surrounding their use as demonstrative evidence at trial, see M. DOMBROFF, supra note 6, §§ 6.13­.16 (1983 & Supp. 1990).

G. JOSEPH, supra note 6, at § 4­46.

See, e.g., Bolstridge v. Central Maine Power Co., 621 F. Supp. 1202, 1204 (D. Me. 1985) (the very nature of the day­in­the­life tape "dominates evidence more conventionally adduced"); Thomas v. C.G. Tate Const. Co., 465 F. Supp. 566, 568­71 (D.S.C. 1979) (27­minute videotape showing a burn victim's physical therapy, including his grimaces and audible expressions of pain, was excluded as prejudicial); Reggio v. Louisiana Gas Serv. Co., 333 So. 2d 395, 402 (La. Ct. App.) (inflammatory segments of tape were stricken and remainder admitted), cert. denied, 337 So. 2d 187 (La.), and cert. denied, 337 So. 2d 526 (La. 1976).

FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."); see also Leighton, supra note 8, at 55­57 (listing applicable federal rules of evidence for videotape use).

This hypothetical draws heavily from the facts of a products liability case in which a federal appeals court held such a videotaped deposition to be inadmissible under Rule 403 of the Federal Rules of Evidence because the high risk of its unfair prejudice to the defendant outweighed its probative value. See Marsee v. U.S. Tobacco Co., 866 F.2d 319, 322 (10th Cir. 1989).

See G. JOSEPH, supra note 6, at § 4­47; see also Cisarik v. Palos Community Hosp., 144 Ill. 2d 339, 579 N.E.2d 873 (1991) (permitting use of day­ in­the­life video).

For a perceptive account of the history of artistic portraits of justice, see generally Dennis E. Curtis & Judith Resnik, Images of Justice, 96 YALE L.J. 1727 (1987). See also M.E. KATSH, supra note 2, at 99­100, 268 (image of justice in relation to computer information storage and processing).

Note also that Justicia's ears are not covered. Assuming she is not deaf, Justicia would not be excluded completely from the realm of orality. Nevertheless, visuality was a critical component of the oral tradition and blindfolded as she is, Justicia cannot return to the oral way of the law.

See Curtis & Resnik, supra note 191, at 1732 (Justicia on top of the City Hall, New York, constructed circa 1803­1812).

Id. at 1728.

Much of the argument in this section applies equally to adjudicatory uses of paratexts which are not accounts of the trial proceedings themselves. For example, a will that is videotaped may be dispositive or otherwise important evidence in a probate challenge. Similarly, in a criminal trial, a videotaped confession may play a critical role. The use of the paratexts in these situations implicates the same basic concerns discussed in this section. Interestingly, the "video within a video" phenomenon is probable: A videotaped trial record may include the presentation of videotaped evidence (for example, a videotaped will or confession) to judge or jury. This phenomenon raises the ante for the concerns discussed here. Imagine that during the course of a videotaped trial, only an edited portion of a videotaped confession is played. On appeal, there is then the real possibility that the court will review both videotapes in their entirety and be influenced by the contexts of both.

See LAWRENCE M. FRIEDMAN, THE REPUBLIC OF CHOICE: LAW, AUTHORITY AND CULTURE 51­60 (1990) (arguing that electronic "[t]echnology is a crucial force in promoting social change" in modern times, and that the formal and structural features of law are affected by electronic modes of communication).

See, e.g., WAYNE R. LAFAVE & JERALD H. ISRAEL, CRIMINAL PROCEDURE § 26.5, at 994 (1985); MCCORMICK ON EVIDENCE § 52, at 134 (Edward W. Cleary ed., 3d ed. 1984).

See, e.g., FLEMING JAMES, JR. & GEOFFREY C. HAZARD, JR., CIVIL PROCEDURE § 12.8 (3d ed. 1985); CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS § 96, at 647 (4th ed. 1983).

See, e.g., F. JAMES, JR. & G. HAZARD, JR., supra note 198, § 12.8; W. LAFAVE & J. ISRAEL, supra note 197, § 26.6; MCCORMICK ON EVIDENCE, supra note 197, § 182.

See, e.g., F. JAMES, JR. & G. HAZARD, JR., supra note 198, § 7.20; C.A. WRIGHT, supra note 198, § 95.

See W. HEWITT, supra note 4, at 31­41.

See id. at 86­91.

Consider the following comments excerpted from questionnaires answered by attorneys practicing before the appellate courts in Kentucky, Michigan, North Carolina, and Washington:

* I think you need to survey appellate court judges to see if they really can keep from second guessing the trial court on issues of credibility and demeanor of the witness.

* Historically the appellate court has not looked at the demeanor of witnesses in making its evaluation of the record. I think video records will alter that rule and that such an alteration will change our trial system generally.

....

* My only concern with video is that appellate judges might be influenced more by personality, emotion, etc., than by [an] actual cold written transcript of proceedings.

Id. at 90 (quoting survey responses Q. 4, Q. 236, & Q. 1224) (citations omitted).

According to Hewitt, some appellate judges stated

that they would prefer to work with the "cold" record in most cases, so that they would not be distracted or "tempted" to be inappropriately influenced by appearance or demeanor of witnesses. Both race and manner of dress were mentioned by appellate judges as things they "do not need to know" about witnesses.

Id. at 89. Other judges, by contrast, reported that

occasions arise when the specific issue they are asked to rule on is preserved in the video record but is not preserved, or not preserved as effectively, in a narrative record. Appeals made by sentenced defendants from a plea of guilty­claiming that their waiver was not made knowingly, or that they were incapable of understanding its significance­are a class of appeals where appellate judges have found that seeing and hearing the proceeding has made them more secure in their decisions.

Id.

Reuben, supra note 15, at A24.

See text accompanying note 155 supra.

L. FRIEDMAN, supra note 196, at 53.

Simply put, gestalt is the concept underlying an early twentieth­century school of psychological thought that the totality of any event cannot be explained merely as the aggregate of its components. With regards to perceptual organization, gestalt theory holds that the character of a total event will govern how its components are perceived, or whether they are perceived at all. The phrase "the whole is greater than the sum of its parts" and the term "holistic" are colloquialisms associated with gestalt psychology. See generally K. KOFFKA, PRINCIPLES OF GESTALT PSYCHOLOGY (1935); WOLFGANG KOHLER, GESTALT PSYCHOLOGY: AN INTRODUCTION TO NEW CONCEPTS IN MODERN PSYCHOLOGY (1947). To the extent that jurisprudence in the era of paratexts focuses more on the entirety of legal events than on their isolated components or abstract summaries of those components, that jurisprudence is gestalt­like.

It is interesting that should the electronic age usher in a process of adjudication and a theory of justice approximating our description of gestalt jurisprudence, we may arrive at the same destination as alternative schools of legal thought (such as the feminist jurisprudential and the "law­as­literature" movements) although not necessarily for the same reasons. See generally INTERPRETING LAW AND LITERATURE: A HERMENEUTIC READER (Sanford Levinson & Steven Mailloux eds., 1988) (both legal and literary texts can be interpreted only in context); JAMES BOYD WHITE, WHEN WORDS LOSE THEIR MEANING: CONSTITUTIONS AND RECONSTITUTIONS OF LANGUAGE, CHARACTER, AND COMMUNITY 231­74 (1984) (law seeks to be an open system); Linda R. Hirshman, Bronte, Bloom and Bork: An Essay on the Moral Education of Judges, 137 U. PA. L. REV. 177 (1988) (moral values found in literature should prepare judges for moral decisionmaking); Ann C. Scales, Towards a Feminist Jurisprudence, 56 IND. L.J. 375 (1981) (feminist vision of equality must be incorporated into the law); Suzanna Sherry, Civic Virtue and the Feminine Voice in Constitutional Adjudication, 72 VA. L. REV. 543 (1986) (feminine jurisprudence places greater influence on context in decisionmaking); Richard Weisberg, Coming of Age Some More: 'Law and Literature' Beyond the Cradle, 13 NOVA L. REV. 107 (1988) (virtue found not on the printed page but in human action in a particular context).

W. ONG, INTERFACES, supra note 39, at 325.

By this, we mean the cumulative effects of paratexts working in tandem with computerized legal information systems. For a seminal discussion of the computer's impact on "closed­system" legal thinking, see M.E. KATSH, supra note 2, at 94­112.

W. ONG, INTERFACES, supra note 39, at 325; see also WALTER J. ONG, FIGHTING FOR LIFE: CONTEST, SEXUALITY, AND CONSCIOUSNESS 27­29 (1981) (shifts in agonistic structures in knowledge relate to the shift from "closed­system paradigms" to "open­system paradigms" in Western thought).

See W. ONG, INTERFACES, supra note 39, at 328­29; see also note 153 supra.

W. ONG, INTERFACES, supra note 39, at 341.