I. Precedent dissemination in the pre-digital era

A. Public law reports

¶16 In judicial systems that function like those of Kansas and other U.S. jurisdictions, for past judicial opinions to guide future ones, it is essential that those opinions be readily accessible to judges and to lawyers presenting them with opposing legal arguments.  In addition, unless all are quite literally reading from the same page,[37] there must be a system of citation enabling precise reference to those past opinions and the specific passages within them pertinent to the present controversy.  For over a century the mode of information dissemination fulfilling these requirements and thereby providing infrastructure for the operation of precedent consisted of judge-written opinions, distributed in publicly sponsored print law reports.

¶17 Law reports produced in this fashion developed during the nineteenth century and set U.S. judicial practice apart from its historic antecedents.[38]  Congress authorized appointment of the first “official reporter” of decisions of the U.S. Supreme Court in 1817.[39]  An order issued by the Court in 1834 marked the end of the practice of rendering oral opinions and regularized the flow of written decisions to the reporter.[40]  Having official law reports was an established part of the statehood package for states admitted to the union after the Civil War.[41]  By the end of the century nearly all states in the U.S. had established publicly sponsored law reports that disseminated opinions of at least their highest court,[42] opinions written by the judges themselves rather than reconstructions by a reporter of remarks delivered ex tempore from the bench.[43]

¶18 Key elements of the public law report system can still be seen etched in the statutes of a number of states where it continues to operate.[44] These include Kansas[45] which still produces the Kansas Reports and the Kansas Court of Appeals Reports.  The first step is timely delivery of written appellate opinions[46] to a public official, the reporter of decisions.[47]  In many states, including Kansas, the statutory framework recognizes that not all decisions made by an appellate court warrant full opinions articulating reasons[48] and that not even all written opinions warrant publication.[49]  The reporter’s job is to organize all publishable opinions into volumes adding such editorial elements as syllabi, the names of attorneys, perhaps more, plus a table of contents and index.[50]

¶19 The reporter or a comparable public official is also responsible for overseeing law report production and distribution.  Typically, that occurs in two waves – softcover advance sheets, followed months later by hardbound volumes. [51]  Both are distributed at public expense to the jurisdiction’s judges at all levels and sold, often at a controlled price, to lawyers and libraries.[52]  The typical statute also contemplates an exchange of reports with other states, a form of barter aimed at securing resources for the state law library.[53] 

¶20 Details vary from state to state.  Kansas is, today, unusual in having its reports printed and distributed by units of state government rather than under contract by a commercial publisher.[54]  It is also one of a small number of states in which summaries of the key points of law in an opinion (the syllabus or set of headnotes) are prepared by the court itself rather than added by the reporter or a private contractor.[55]  The fundamental policy premise underlying these various arrangements is clear: The effective and timely dissemination of precedent is a public responsibility.  It is to discharge that responsibility that statutes authorize the production and distribution of volumes containing current appellate decisions to judges and public officials throughout the state together with measures designed to assure that they also have access to a full retrospective case law collection and provide for the sale of the same law reports at reasonable prices to individual lawyers, law firms, and law libraries.

B. Public law libraries

¶21 Public involvement in the creation and support of law libraries developed in rough parallel with the establishment of public law reports, but far less rapidly or completely.  Individual nineteenth century lawyers did have their own libraries, but most lawyers required access to larger collections than their practice could reasonably support.  Judges needed to consult more than the published statutes and case law of their own jurisdiction.  Law reports were swiftly followed by case digests and related finding aids, treatises, and other essential references.  The earliest response to this collective need took the form of subscription or membership law libraries.  The first of these was the Philadelphia Social Law Library, established in 1802.[56]  These soon spread to other eastern metropolitan centers and followed settlement to the West.[57]  The Leavenworth Law Library Association of Kansas, was established in 1866 with 33 founding members.[58]  While such libraries, where established, met the needs of their members, the desire to provide a core collection for the use of judges and other public officials, as well as lawyers not served by a subscription library led to the creation of public law libraries.  By the early twentieth century many states had at least authorized systems of state and county law libraries.[59]  By 1972 there were over 1,000 of them,[60] several in Kansas.[61]

¶22 While public law libraries were appealing in concept, with some conspicuous, largely urban, exceptions, they never achieved the reach or quality to which their supporters aspired.[62]  As a means of assuring that front-line judges and those appearing before them had adequate legal information, this patchwork system was never a great success.  As a method of providing the public with direct access to law, it was an utter failure.  Most public law libraries were neither designed nor intended for that; they served the public by serving lawyers and judges.  Chronic funding difficulties plagued their effectiveness long before online legal information threatened their viability.  As legal publications proliferated and their cost grew in the second half of the twentieth century, public law libraries in the areas with the greatest need – thinly resourced, sparsely populated, rural areas – faced crisis conditions.[63]

C. Commercial law reports: The National Reporter System

¶23 Public law reports faced funding difficulties too, but a greater threat came from the private sector, in the form of the parallel, commercially produced case reports that emerged toward the close of the nineteenth century.  For a brief period there was fierce local and regional competition among commercial rivals, but by the early twentieth century there had emerged a single powerfully attractive alternative to public law reports – West Publishing Company’s National Reporter System.  This series of regionally compiled state reports initially pushed public law reporters to expand and improve their editorial additions, to move decisions to print with greater speed, to publish advance sheets if they had not before, and to conform advance sheet pagination to the pagination that would ultimately appear in the bound volume.[64]  The public entities responsible for law report production and distribution were, however, all-too-often prevented from matching West’s performance by limited funds, insufficient and often less competent staff, inferior printing technology, and general legal constraints on public contracts and sales.[65]  Typically they had no pricing flexibility.[66]

¶24 Importantly, most states were unable to reprint back volumes during periods when a growing legal profession and judiciary created demand for complete retrospective sets.  Supreme Court copyright decisions effectively blocked state efforts to reserve or grant exclusive publication rights.[67]  As a result, West Publishing Company traveled an unimpeded path in producing its comprehensive national series of reports.  Courts commonly insisted that those citing precedent to them refer to the volume and page numbers in the state’s “official reports,” but West was free to insert those citation parameters in its volumes when they were available before the West reports went to press and to provide cross-reference tables when they were not. This enabled users of the National Reporter System to cite to official reports without acquiring or otherwise securing access to them.

D. Unpublished appellate decisions

¶25 With the exception of West’s reports covering the lower federal courts, the National Reporter System did not compete by publishing opinions that those producing public law reports had not themselves selected for publication.  For most states, at the turn of the twentieth century, that simply entailed publishing all decisions rendered with full opinions by the jurisdiction’s highest court.  As noted earlier, these were not necessarily all decisions.  Some appeals were disposed of summarily, with little or no explanation.  Lacking detailed explication, these summary dispositions were, even when noted in law reports, of no value as precedent.  And in some states, Kansas being one, public law reports were not required to include all supreme court opinions, but only those the court “deemed important.”

¶26 During the formative years of public law reports, only the federal judiciary and a handful of states had multi-level appellate structures, with an intermediate appellate court placed between trial courts and the court of last resort.  During the latter half of the twentieth century, however, growing caseloads led more and more states to adopt this model;[68] Kansas did so in 1977.  By the dawn of the digital age approximately three-quarters of the states had intermediate appellate courts.[69]  Decisions of these intermediate courts were fed into the law report systems, state and commercial, but only a fraction of them.  Most states setting up intermediate appellate courts specified that only selected decisions from this judicial layer should be published.[70]  Within the federal judicial structure, the move to selective publication of U.S. Court of Appeals decisions also began, or at least became a signficant and acknowledged practice in the latter half of the twentieth century.[71]  Decisions withheld from public law reports under such policies were listed in West’s National Reporter System (as so-called “table cases”) but not printed in full.  The decision not to publish an opinion effectively kept it out of both the official and commercial precedent distribution channels.  Being invisible it could not operate as precedent.

¶27 With few exceptions, invisibility was the fate of all trial court decisions.[72]  In those few jurisdictions where some were published, the criteria for publication were stringent, the allotted space severely limited.[73]  Here too, West Publishing Company’s National Reporter System simply tracked the official reports.  West’s decision to publish selected decisions of the U.S. District Courts in a Federal Supplement reporter[74] and the more focused Federal Rules Decisions demonstrated that trial court decisions were not without value to bench and bar.  That value was also reflected in sustained local publication of trial court decisions in a few states.[75]  But jurisdiction-wide publication of even selected trial court opinions was a rarity.

E. The disappearance of independent state published reports

¶28 In time competition from West’s National Reporter System led many states to cease publishing their own reports.  For anyone needing access to the multi-jurisdiction coverage of the West reports (a group that included ever more judges and lawyers, as federal law and decisions climbed in importance and national commerce and interstate activity of all kinds expanded through the first half of the twentieth century) public reports seemed a costly redundancy, even when they were timely and well done.  With advance sheets, bound reports, and digests that were in many cases far swifter to arrive, a system of summarizing and headnoting that strung decisions on the same issue together not only within a jurisdiction but beyond, together with a strong reputation for accuracy, West offered a full information package with which few states could compete.  Where the market warranted the company was more than ready to produce a single state offprint from its regional reporter so that courts, lawyers, and the libraries serving them did not have to acquire case law of other jurisdictions along with each full set of local precedent.

¶29 Beginning with Florida in 1948,[76] a parade of states, including three quarters of those immediately adjoining Kansas,[77] joined the lower federal courts in ceding all law report publication to West.  The step reduced public payroll and got the state out of the business of storing and distributing law books.  It also shifted the judiciary as well as all other units of state government into a totally dependent posture, buyer of the state’s own precedent from a single source.

¶30 By the mid 1990s nearly half the states openly relied on West for their law reports.  Others quit law report publication less conspicuously and in some cases less completely.  The Pennslyvania State Reports, prepared by a state reporter, reach back in an unbroken sequence of volumes to 1845.  For over thirty years, however, they have been prepared and published by West (now Thomson).  Volume 458 was prepared by Joseph W. Marshall, State Reporter, and published under his supervision.  He retired in 1974. Volume 459 was published by West and included the summaries and headnotes prepared by its editors for the Atlantic Reporter.  The pattern continues to this day.  Similar shifts to what might be called officially sanctioned commercial publication took place in other states, which viewed from a distance would appear to to have maintained independent production of their own reports.[78]

¶31 Even in those states that have continued to supervise production of their own law reports, less and less of the work is performed inhouse.  Today, Kansas is unusual in handling the editorial, production, and distribution process from start to finish.  The prevailing approach is to contract out the latter functions while retaining ultimate editorial control.  Faced with budget cutbacks, state law reporters have had to let go of staff and outsource editorial functions they once carried out themselves.[79]

¶32 To conclude, by the end of the twentieth century, public control over and responsibility for the distribution of precedent had been severely compromised by the effectiveness and market dominance of a single system of commercial law reports.  And, in part as a consequence, the judiciary’s need for law reports had, in most jurisdictions, led to a deep level of dependence on the proprietary methods and format of that system of reports.  As it deemed necessary, West was not reluctant to remind states of that.[80]

II. The arrival of virtual law reports and virtual law libraries

A. Lexis / Westlaw

¶33 It was only a decade ago that a serious alternative to libraries of print law reports became available to judges, lawyers, and others in the United States.  Although the two major online services, LexisNexis and Westlaw, date back to the 1970s, for most of their history these were case-finding tools.  They supplemented but did not substitute for print reports.  In infancy both were costly proof-of-concept services, with serious scope limitations.[81]  Launched in 1969, Lexis was, by 1976, offering federal case law reaching back fifty-one years for the Supreme Court, thirty-one years for the U.S. Court of Appeals, and sixteen years for the District Courts.  But its state materials were meager – comprehensive but chronologically thin collections for nine states, plus a selection of Delaware corporate law decisions.[82]  At roughly $125 per hour this package drew few subscribers.[83]  Westlaw in these early days avoided any risk of displacing West’s print publications by offering only headnotes.  Its depth was eight years for the states, fifteen years for federal cases.[84]

¶34 By the mid-1980s, a Lexis threat to add star pagination keyed to West’s National Reporter System to its case data raised the prospect of researchers working mostly, if not totally, from electronic versions of the print volumes.  That provoked a West copyright suit.[85]  By the time the parties settled their litigation in 1988 with a cross-licensing agreement, allowing Lexis (at a heavy price) to insert West pagination in its database, Westlaw had itself added pagination.  In the meantime, access to both systems had moved from large terminal and printer installations in libraries first to desktop terminals and then to PCs with modems.[86]  The scope of their collections had been expanded; both held reported cases from all fifty states.  Limited historic depth, however, still forced researchers to the books for older cases.  Lexis reached back at least to 1965 for all states, further for some like New York (1940), California (1945), and its home state of Ohio (1921).[87]  Westlaw’s retrospective coverage was comparable.[88]  By 1989 both systems had online cite-checking.[89]  About the same time they declared their intent to provide full 50-state statutory coverage.[90]

¶35 It was not until the mid to late 1990s that these systems attained sufficient scope and functionality to become full research environments – virtual libraries – rather than simply places to begin case research.  No single change, but rather a series of them, many the consequence of external developments and pressures, led to online case reports becoming not only a plausible substitute for the print originals, but a compelling albeit still costly alternative.  Competition with CD-ROM-based legal research products of the early nineties spurred several key software improvements.  One was hyperlinked references, standard in the early law CD-ROMs, but not an easy transplant onto the character-based, non-scrolling terminal interface with which Lexis and Westlaw users had to cope.  Lexis first employed “link markers” set off in brackets adjacent to citations (e.g., <=160>).  To follow such a reference, the user had to key in the bracketed formula (e.g., “=160”).[91]  Link markers eventually morphed into link tokens to which one could jump with the tab key,[92] and finally, as lawyers and judges migrated (ever so slowly) to a Windows interface, to links operated by means of a mouse.  While links made it far easier to leap from one text to another than had ever been possible in print, the online systems remained dramatically inferior as a reading environment or print source.  To begin, reading an online case on a PC meant paging through it screenful by screenful.  Downloading proceeded in the same small increments.  Generating print copies was both clumsy and in many instances inadequate.  By contrast CD-ROM case law products permitted users to extract cases formatted as word-processor documents.  While Westlaw and Lexis eventually responded,[93] scrolling up or down through the full text of an opinion, saving or printing it in its entirety became fully possibly only when both systems moved to the World Wide Web and a standard Web browser (rather than proprietary software) interface.  That did not occur until 1998.[94]  One precondition for this new WYSIWYG window on decisions was Internet access at sufficient bandwidth to allow their delivery in full, rather than screen-sized chunks.  The shift also required major fresh investment in both software and data throughout what were by then quite large systems.  Neither database had been built with this future in mind.[95]

B. New players in this new environment

¶36 At roughly the same time that Westlaw and Lexis were succeeding in putting case law research on the desktops of lawyers practicing in large firms, new players with new business models began to bring electronic case law within the budgets of small firm lawyers.  Here too CD-ROM technology was an important catalyst.  Through the early 1990s, Westlaw and Lexis offered more than most small firm lawyers needed at prices they couldn’t afford.  Both charged in ways that made their services unattractive to those making repeated use of a single state’s cases and statutes.  In 1995 Law Office Information Systems (LOIS) began selling state-specific CD-ROMs for a flat $600 per year.[96]

¶37 By 2000 a striking array of less costly research options were available to U.S. lawyers, including importantly those practicing in small firms.  LOIS, by then Loislaw, had moved to the Internet and expanded to all fifty states.  It was under-priced in some jurisdictions by small CD-ROM publishers and everywhere by VersusLaw which offered a national online case law library priced at only $83.40 per year for a solo practitioner.[97]  Lexis and Westlaw had themselves created fixed rate plans designed and priced for small firms. [98]  By then public, non-profit and advertising supported sites had begun offering law over the Internet without charge.

¶38 More recently, state bar organizations have become major players in the case law dissemination picture, contracting with a still newer set of commercial providers on behalf of their members.  Leading this development is the “Casemaker” consortium, established by the Ohio Bar Association and a small electronic publisher.  Bar groups joining the consortium provide its online service to their members without charge.  Currently, Casemaker claims twenty-eight state bar association members.[99] A recent addition to the group is the Kansas State Bar, which introduced this service to its membership in late 2006.[100]

¶39 A second entrant using this business model (as well as a search engine that has learned some lessons from Google) is Fastcase.[101]  In the past three years, Fastcase has signed up ten state bars plus a good number of local or specialty bar associations and membership libraries.[102]

¶40 As the market for legal information sped through these quite rapid changes, networked computers moved to the desktops of nearly all lawyers and judges – providing writing space, communication channel, scheduling and management tools.  Print publishing was itself transformed.  With courts producing opinions on computers, those publishing print law reports sought and acquired access to electronic rather than hard copy versions.  Electronic publishers, including the new entrants, pressed for the same.

¶41 The cumulative result, taken for granted today but unimaginable not that long ago, is a fully electronic work environment.  As recently as 1995, lawyers, especially those a decade or more out of law school, relied heavily on printed reports when researching case law.[103]  Today, most writing by lawyers and judges – whether memoranda, briefs, or judicial opinions – is composed and revised at a computer.  Most case law research is done there as well.  Quotations are copied from digital sources, not rekeyed.  Lawyers, young and old, write briefs without ever pulling a law report volume from the shelf.  Libraries pressed for shelf space and funds have ceased acquiring new volumes[104] and even sought to rid themselves of old ones.[105]

¶56 Print law reports are costly to produce, distribute, and store.  They are also difficult to search.  As a consequence, print dissemination of precedent encourages, if it doesn’t force, selection.  As reported earlier, whether or not state high courts engaged in selective publication, the addition of intermediate courts of appeal to state judicial systems was almost invariably coupled with policies limiting publication of their decisions.  In most states, the decision not to publish a decision effectively denied access to it.  And because of the serious issues that could arise were unpublished and therefore unknown decisions to be, nonetheless, binding precedent, most jurisdictions declared unpublished decisions to be non-precedential.

¶57 Although the nomenclature used to distinguish published, precedential opinions from those simply disposing of a case and the criteria for choosing which opinions belong in the precedential category varied among jurisdictions, selective publication became the norm.[118]  As the volume of appeals handled by appellate courts climbed during the latter quarter of the twentieth century, the percentage of opinions distributed as precedent declined.[119]

¶58 Kansas court rules divide appellate decisions into two categories: published formal opinions and memorandum opinions.[120]  Decisions are placed in the first category only if they address new issues or are otherwise thought to have “value as precedent.”  Memorandum opinions are not “binding precedents,” and their citation, while not forbidden (the case in some other states[121] and, not so long ago, in Kansas[122]), is said to be “not favored.”[123]  Nearly ninety percent of the decisions rendered by the Kansas Court of Appeals are delivered by such non-precedential opinions.[124]

¶59 Following the early lead of Lexis, online redistributors of court decisions have not restricted their databases to opinions published in print law reports.  Judicial proceedings are public in the U.S. and, subject to very limited exceptions, the resulting judgments are available to any database builder prepared to make the arrangements necessary to secure them.  When Lexis first loaded “unpublished” decisions into its federal and state files this entailed obtaining physical copies from court clerks or reporters and digitizing them.  As courts moved to word processors and began placing opinions on dial-up bulletin boards the process became simpler and open to a wider range of private sector redistributors.  By the end of the twentieth century, court bulletin boards had been supplanted by Web sites, most offering many more decisions than were being distributed in print law reports.  In some U.S. jurisdictions, legislative action encouraged or even mandated this more comprehensive release of court opinions.  The E-Government Act of 2002 requires that federal courts at all levels furnish “[a]ccess to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter” at a public Web site.[125]  And while the act allows other digital information about closed cases to be removed after a year, it mandates that “all written opinions … remain available online.”[126]

¶60 In numerous states where appellate courts produce “unpublished” non-precedential opinions, those decisions are nonetheless systemmatically disseminated via the Internet with their status clearly indicated.  With some, this occurred only after pressure from lawyers and lower courts.[127]  Some states, Ohio being one, have gone further and erased or moderated the distinction between “published” and “unpublished”, “precedential” and “non-precedential decisions.”[128] Kansas has yet to start down this path.  Unpublished Kansas decisions are available, but only upon request from the Supreme Court Library.[129]  Apparently, however, they are regularly requested by Thomson, for they do appear in full text in Westlaw, often on the day of release.[130]  They are not to be found, however, on Lexis, Casemaker, or any of the other online systems.  Recall that while Westlaw is the system used by Kansas appellate judges not all district judges in the state have access to it nor, of course, do all lawyers.

¶61 With a medium that does not require selective dissemination, the case for distinguishing between appellate decisions that are precedent and those that are not on the basis of print publication is difficult, if not impossible, to make.[131]  The consequences of continuing such policies are particularly troubling when “unpublished” “non-precedential” decisions are in fact available through one or more commercial systems but not at the judiciary’s public site.[132]  The digital environment allows appellate courts to tag those opinions they believe to involve routine application of settled law and for those conducting case research to focus initially on other opinions, without giving rise to all the problems that can flow from withholding opinions from general circulation on that ground or declaring those opinions non-precedential and uncitable.[133]

B. Inclusion of trial court decisions in the flow of precedent

¶62 The same capacity, cost, and search concerns that induced most U.S. jurisdictions to publish only selected appellate decisions led, with but a few exceptions, to trial court decisions being completely excluded from organized distribution and availability as precedent.[134]  Trial courts are, of course, bound by vertical precedent flowing down from the jurisdiction’s appellate courts, but they have not generally been seen as producing precedent in any form.  Yet the experience of those jurisdictions that publish some trial court decisions and examples from others where local distribution channels – legal newspapers, bar publications, and in recent years Web sites – have given courts and counsel access to trial decisions demonstrate their value as precedent in the looser non-binding sense.  There is also, of course, the conspicuous example of the federal courts.  Decisions of the U.S. District Courts, including many not published in print, are widely cited and relied upon even though they are not binding precedent.[135]

¶63 Important legal questions can recur in litigation numerous times without being appealed.  For example, the question whether data available from an automobile’s black box can be admitted as evidence of the vehicle’s speed without a prior hearing on reliability has been addressed by appellate courts in a few states[136] but not New York.  The issue must, therefore, be addressed by New York trial courts without the direction of vertical precedent.  Because trial court decisions do circulate in New York, including significant numbers beyond those selected for publication in the official reports, any New York lawyer or judge confronting this question can find guidance in several unappealed lower court rulings.[137]

¶64 There are particular legal domains within which important legal issues are repeatedly litigated without ever being appealed to a court producing decisions eligible for publication in a law report.  Family law is one.  Since 1977 selected opinions of Delaware’s state-wide family court have been published in print,[138] on average 5-6 per year.[139]  Beginning in the 1980s first Lexis and then Westlaw began to load the court’s “unpublished decisions.”  Today both systems have significant collections of Delaware family court precedent.[140]  All of Delaware’s judiciary, including family court judges, have access to both online services.[141]  On such context-dependent questions as the division of assets and liabilities in a divorce,[142] the termination of alimony because of “cohabitation,”[143] or extension of parental custody preference to a “de facto” relationship,[144] Delaware family courts are able to find more guidance in other family court decisions than in opinions of the state’s supreme court.[145]

¶65 Providing vastly expanded access to trial court decisions is feasible in a digital age.  In many states that may require a coordinated public initiative.  Montana illustrates the point.  Until recently the official publisher of opinions of the Montana Supreme Court was a local firm, State Reporter of Helena.  The firm also operated an online database.[146]  While not publishing Montana trial court opinions in print, it began to add them to this online system, offering free access to those courts that contributed decisions.[147]  Eventually all responded.  By the year 2001, approximately 2,000 district court opinions were being added per year.[148]  Lawyers referred to them; district judges cited them.[149]  When LexisNexis acquired State Reporter in 2005, this database of over 16,000 trial opinions became part of Lexis, but the relationship with Montana’s district courts was ruptured.  The annual flow dropped dramatically.[150]  Competing collection development priorities make it unlikely, at least in the short term, that Lexis will restore it.[151]  Montana’s district courts have been brought under the state judiciary’s Lexis contract so that all judges in the state have access to this collection of trial court opinions, but its value is no longer being maintained.[152]  Longer term, an electronic case document system planned by the state may, as it has other jurisdictions,[153] open trial decisions to direct public access and facilitate commercial redistribution (by more than a single provider).

¶66 Including trial opinions in the pool of available precedent not only provides trial judges with useful guidance in situations where they are not bound by vertical precedent, but it affords appellate courts a broader view of individual appeals by enabling them to see how trial courts collectively have dealt with vexing issues.  Access to trial court decisions is valuable as well to those who are seeking to avoid litigation, deciding whether to litigate, contemplating settlement of a dispute, or weighing the need for legislation in an area.[154]  Lastly, accessible trial court opinions may make it possible for some appellate decisions to be brief.[155] In the evident belief that there is potential demand Westlaw has very recently begun collecting and offering “State Trial Court Orders.” Already, the database holds over 350,000 decisions, most from the largest states and dating from the past five years.[156]

C. Opinions structured not merely for print but for digital distribution, navigation, and search

¶67 Most state court Web sites, like that of the U.S. Supreme Court, offer digital files that are designed to replicate the paper “slip opinions” for which they substitute.  This has the advantage of assuring consistent pagination and format – indented quotations are indented, emphasized text is shown in bold or italics, embedded maps, photographs, and other graphic material are displayed in context.  The dominant format is pdf.  That approach, powerful evidence in itself of the continuing hold of the print paradigm, is seriously deficient for documents destined to reach readers by means of a database search or other electronic process.

¶68 The Kansas judicial site neither preserves all the print features of the decisions it distributes (Indented quotations, for example, display no indentation.) nor enhances them with fields, metadata, and other structural attributes that would facilitate their use in today’s virtual libraries. (e.g., searches by date, docket number, or opinion author).  In short, the medium is not taken seriously.

¶69 Taking digital dissemination seriously requires encoding the structure not merely the appearance of opinions – separating such distinct data elements as Westlaw and Lexis have taught researchers they should be able to search on – syllabus, judge, date, cited authority –  linking to cited references, and revealing the structure of opinions’ legal analysis as reflected in their headings and subheadings.  The data standard capable of doing all this (XML) is now built into most forms of text handling software from Word and WordPerfect through Adobe Acrobat to contemporary Web browsers.  That capacity needs to be used.  Taking this largely invisible step can have a positive effect on the usefulness of court Web sites and, at the same time, reduce the costs of redistribution through commercial systems.  It might even have a long range beneficial effect on the analytic structure of decisions.

D. Precedent augmented by related data

¶70 Throughout their history, U.S. print law reports, whether prepared by public reporters or commercially published, have bundled pertinent other material with judicial opinions.[157]  Editorial notes, summaries of arguments of counsel, indices were and still are common features.  In addition, opinion authors have, on occasion, placed important background material in appendices.[158]  Limitations of the medium effectively required some of these editorial enhancements (hyperlinks not being an option), but print also severely restricted the amount of supplementary data and forced hard choices about placement in relation to opinion text.  The digital environment has at once reduced the need for some editorial features, dramatically relaxed the quantitative constraints, expanded format options, and enabled direct access to vast amounts of background material previously unavailable to all but the most resolute researchers. 

¶71 With limited exceptions the headnotes and issue summaries prepared for official print reports by public law reporters have not accompanied the decisions themselves onto the Web or into commercial online collections.  For Westlaw and Lexis their inclusion would be redundant; for most of the others, too costly.  Following the historic approach of the National Reporter System, except as its publishing contracts require otherwise, Westlaw replaces all state-produced notes with proprietary editorial matter.  Lexis now does much the same although for some states, including a few for which it publishes the print reports, the service inserts “official headnotes” following its own.  Loislaw, which adds no analytic summaries of its own preparation, includes reporters’ notes in a somewhat larger number of jurisdictions, presumably those states important to its subscriber base for which acquiring both the data and rights to use it are not especially difficult.  The other online case law services simply omit law report content not authored by the court itself. Apparently, they have concluded, not unreasonably, that in a searchable collection of precedent jurisdiction-specific editorial additions contribute insufficient value to justify the substantial costs of including them.  These costs exceed those of gathering the underlying court opinions for two reasons.  First, with only a handful of exceptions, state preparation of headnotes, syllabi, and the like occurs well after release of the decisions.  Being generated during the print publication process, these post-release enhancements never join the opinions at a court Web site.  Any online distributor desiring to merge them with the underlying opinions must, therefore, digitize their text from the print reports.  The difficulty is compounded by copyright issues.  States and publishers producing such supplementary material, even those that acknowledge that judicial opinions per se are in the public domain, quite commonly assert copyright in all law report editorial additions.[159]

¶72 Only when digital dissemination and competitive redistribution are taken seriously will those jurisidictions still preparing case summaries and analytic indices for print be likely to attend to the challenge of adapting content of this sort to online case law and let go of concerns about redistribution.  Beyond linked and searchable headnotes and case summaries are myriad possibilities.  Courts systems have begun to deploy computer-based case and file management systems.  Some encourage or even require electronic filing of briefs and other case documents.  Many now record all oral arguments digitally.  Increasingly, those reading a judicial opinion online should be able, if they choose, to read it against the full arguments made by counsel, the record on appeal, and perhaps statistical data on the judges’ dispositions in similar cases.  A number of these elements are already in place at state court Web sites.[160]

E. Opinions employing more than text

¶73 The world to which law and therefore precedent must relate has color, shape, texture, sound, and movement. The technology and economics of print law report publication have effectively limited precedent to text.

¶74 Over a decade ago, the U.S. Supreme Court delivered an important trademark opinion in  Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995). Writing for a unanimous Court, Justice Breyer construed the language defining the reach of the Lanham Act – “word, name, symbol, or device” – as encompassing color. Qualitex had registered “a special shade of green-gold” as a trademark for pads it sold to dry cleaning firms. The litigation that brought this issue to the Court arose when a competitor, Jacobson Products, began selling pads of a similar color. Prior law on this point was far from settled, but market realities had already broken down narrow readings of the Act.

¶75 The Court's decision explored and ruled on the role of color in identifying the Qualitex pressing pads without aid of an image of this “green-gold” object or its “similar” competitor.  Three years earlier in Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) the Court dealt with the question whether Taco Cabana's restaurant décor constituted trade dress protected by section 43(a) of the Lanham Act.  The issue came framed by a jury finding that the restaurant chain’s interior and exterior had not acquired secondary meaning but were “inherently distinctive.”  The opinion begins with a short description of Taco Cabana’s Mexican trade dress.  A photograph or two drawn from the record would have been far more useful.

¶76 In the years since, the Supreme Court has begun to incorporate images and color in its opinions.  From the beginning of 1999 through the end of the October 2006 term, ten opinions issued by the Court have included a graph, map, or other image.[161]  The previous decade there were none.  In April 2007, with a case in which a 16-minute police video was pivotal, the majority opinion effectively incorporated the clip by means of a link to a digital video file loaded onto the Supreme Court Web site.  Wrote Justice Scalia:

Scott v. Harris, ___ U.S. ___, ___ n.5 (2007) [162]

VI. Institutional inhibitions and sources of resistance

¶79 All these changes in the content, format, and function of precedent are attainable and, over enough time, very likely inevitable.  None of them will come soon, easily, or uniformly across the United States.  Sources of inhibition, incapacity, and affirmative resistance are numerous.