Introduction - Burdens of Proof - page 11

This process took place at the same time the legal community debated
Lawrence Lessig's theory of information technology regulation, as articu-
lated in his highly influential Code and Other Laws of Cyberspace . 26 In Les-
sig's theory, computer programming, especially as it pertains to the design
of network architectures, is understood as a normative practice with power
to influence behavior as great as that of social norms, markets, and even
law itself. In such a view, information technology regulation is most effec-
tive when these four practices are coordinated within an “optimal mix”
in which each subordinates its particular logic to the higher calling of
regulation. In this spirit, the evidence law reform that swept the globe at
the end of the 1990s thus sought to ensure not only the modernization of
evidential requirements, but also optimal competitive conditions for
widely anticipated markets for electronic authentication services. Evidence
law turned out to be a poor test case for Lessig's theory of information
technology regulation, however: law's empire is one wholly built of paper,
and the rules that dictate the appreciation of its evidentiary qualities
extend far and deep into law's most quotidian activities. In the end, the
inner logic of evidence law could not be so easily subordinated to the
broader regulatory goals of ensuring societal acceptance of cryptographic
technologies.
In articulating these arguments, I bring together fields of practice and
inquiry that have remained largely separated by the concepts they seek
to share. Cryptographers, legal scholars, archivists, and social scientists
bring distinct sensibilities, disciplinary commitments, and professional
constraints to the study of electronic evidence. Yet I am distrustful of
attempts to heal disciplinary relationships in the name of intellectual toler-
ance. Like Rosemary Coombe, in her insightful cultural analysis of intel-
lectual property law, I would rather foster a space of “continuous and
mutual disruption—the undoing of one term by the other.” 27 In the airing
out of conceptual dirty laundry lies, I believe, the necessary first steps for
the emergence of a more workable evidentiary paradigm for electronic
documents.
I am hoping this airing of differences will not be perceived as denuncia-
tion, as if the very existence of negotiations over the specific meaning of
evidence that obtains in different disciplines would somehow point to
their “socially constructed” character and thus their irremediable failure
to meet their own professional norms. Such a move would be both trivial