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Freedom Paper No. 7

CREATING AND DISSEMINATING LAW IN A DEMOCRATIC SOCIETY
By Bruce KennedyIntroductionDemocratic Legal TraditionsThe Doctrine of Stare DecisisStatutes in Common LawLegislative ProcessesJudicial ProcedureLegal PublishingSuggested ActionsStyles of Statutory DraftingBorrowing Rules of Common LawHow a U.S. Supreme Court Opinion Is
DisseminatedNational Legal DatabasesBibliographyContactsAbout the Author | CREATING AND DISSEMINATING LAW IN A DEMOCRATIC SOCIETY
By Bruce KennedyIntroductionDemocratic Legal TraditionsThe Doctrine of Stare DecisisStatutes in Common LawLegislative ProcessesJudicial ProcedureLegal PublishingSuggested ActionsStyles of Statutory DraftingBorrowing Rules of Common LawHow a U.S. Supreme Court Opinion Is
DisseminatedNational Legal DatabasesBibliographyContactsAbout the Author
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|CREATING AND DISSEMINATING LAW IN A DEMOCRATIC SOCIETY
By Bruce KennedyIntroductionDemocratic Legal TraditionsThe Doctrine of Stare DecisisStatutes in Common LawLegislative ProcessesJudicial ProcedureLegal PublishingSuggested ActionsStyles of Statutory DraftingBorrowing Rules of Common LawHow a U.S. Supreme Court Opinion Is
DisseminatedNational Legal DatabasesBibliographyContactsAbout the Author

The rule of law--and the unfettered dissemination of legal
information--are essential to the functioning of democratic
society.  This paper discusses the history and basic structure of
democratic legal systems and explains how modern technology is
making the dissemination of legal information more efficient and
widespread.

Initially, this essay introduces and explains two legal
traditions--the Civil Law Tradition and the Common Law
Tradition--which are ancestral to most modern legal systems.  It
then discusses the legislative and judicial processes that
enforce old law and create new law in democratic societies. 
Finally, it explores how law is published and how nations can
improve their legal information infrastructures by using modern
information technologies.

Democratic Legal Traditions

Most modern legal systems can trace their ancestry back to either
the Civil Law Tradition or the Common Law Tradition, traditions
reflecting different legal philosophies and cultural approaches
to law.  Understanding these traditions is basic to understanding
the differences that exist among national legal systems and
appreciating the difficulties inherent in creating a universal
concept of law.

The Civil Law Tradition employs a legal code created by a
legislature as its primary vehicle of law and de-emphasizes the
importance of judicial case law, while Common Law Tradition uses
judicial precedent to build a network of rules of law that is
also supplemented by legislation.

The Civil Law Tradition--also called the Roman-Germanic legal
tradition--traces its origins back to a body of Roman law
compiled during the reign of the Emperor Justinian.  Over a span
of six centuries, this Roman law was elaborated upon and enriched
by successive "schools" of scholars working in medieval European
universities.  During the 14th century, a school of thought arose
that attempted to recast all this medieval scholastic law into
rational principles mirroring the emerging "laws" of science. 
Implicitly, scholars of that era sought to define a just society
based on the "natural rights" of man within the rubric of law.

This legal tradition laid the foundation for the codification
movement of the 19th century, when several European nations
restructured their laws into legal codes.  Three great codes--the
civil codes of France (1804), Germany (1896), and Switzerland
(1881-1907)--inspired many codes within Europe.  The legal
codification of that day was also widely exported to Latin
America, Africa, and Asia, an expansion that occurred partly
through European colonialism and partly through voluntary
reception by newborn nations.

Today, the legal "code" remains the central unit of law in
civil-law jurisdictions.  Essentially, a code is a single statute
that sets forth a systematic statement of fundamental legal
principles for an entire field of law.  Civil law, civil
procedure, criminal law, and criminal procedure are the classic
code topics.  However, codes have been written for less sweeping
subjects such as taxation, mining, and motor vehicle law.

Unfortunately, the term "code" has several meanings.  In many
common-law jurisdictions, statutes are published as codes, but
most of these are not true codes; they are compilations of
preexisting statutes as opposed to a single, organic code.  As
compilations of narrowly framed statutes, these codes do not have
the breadth and systematic structure of a civil-law code.

As fundamental law, a legal code tends to be the most durable
component of a civil-law system.  Naturally, it has to be able to
evolve in order to be responsive to novel legal problems.  Thus,
most civil-law jurisdictions permit their codes to be amended by
subsequent statute.

Judicial interpretation of any legal code is necessary to apply
it to actual disputes.  In a civil-law jurisdiction, judicial
decisions are unquestionably binding on the parties to an
original dispute, but they have little or no authority as
precedent in future cases.  Theoretically, each court is expected
to begin its decision-making process with fresh reference to the
code rather than by examining prior case law.  Practically,
however, in many civil-law jurisdictions, the opinions from high
courts do enjoy persuasive authority before lower courts.

The path of the Common Law Tradition is quite different.  Unlike
the Civil Law Tradition, which grew from rich scholarly exegesis,
the Common Law Tradition comes from the practical, positive law
of medieval England.  It began as an amalgam of customs, rights,
principles, and practices common throughout the English realm
that were articulated in decisions rendered by the King's judges.

As royal power grew, so did the jurisdiction of the King's
courts, and by the 15th century a single concept of English
common law had displaced a hodgepodge of local laws administered
in feudal courts.

Unfortunately, the common law hardened into a series of arcane,
rigid procedures--called "forms of action"--that did not provide
relief for many legal problems.  Slowly, and with much friction,
a parallel judicial system--known as "equity"--developed within
the office of the King's Chancellor.  These Chancery courts
granted relief against injustice when no adequate remedy was
available from the common-law courts.  Eventually, even the
equity courts ossified, and by the 19th century, the English
Parliament saw fit to enact sweeping reforms that reorganized the
courts, modernized the common law by abolishing forms of action,
and fused the equity and common-law courts into a single judicial
system.  This history would be insignificant if the Common Law
Tradition had been confined to England.  However, as the British
Empire spread, the Common Law Tradition was transplanted to parts
of Africa, Asia, Australia, and North America, and so became, and
remains to this day, a significant element of legal culture on
many continents.

Essentially, then, the common law is a web of law spun from rules
framed in judicial decisions.  Its growth depends on the notions
of "precedent" and "stare decisis."  Precedent is the general
concept that a judge should look to prior judicial decisions for
a rule of law that can be applied to determine the outcome of a
pending case.  The concept comes from a time when judges saw the
common law as the "law of the land" and the prior opinions of
learned judges as very good evidence of the true nature of that
sometimes rather nebulous common law.

The Doctrine of Stare Decisis

By the middle of the 19th century, the doctrine of stare
decisis--the use of binding precedent--had evolved.  Under
the doctrine of stare decisis (which is Latin for "to
abide by decided cases"), a rule of law framed in one case under
common law will serve as binding authority to resolve future
cases that are the same or analogous.

Stare decisis operates in the context of a hierarchy of
courts in a jurisdiction.  Rules of law framed by high courts are
binding on the lower courts of the jurisdiction.  Rulings by
divisional courts that have co-equal status are mutually regarded
as persuasive authority.

Precedents may also have extra-jurisdictional influence in a
common-law society.  Decisions from other common-law
jurisdictions may be accepted as persuasive authority by a court
wrestling with a novel legal issue.  So in the United States, if
a court in the state of Florida is confronted by a novel issue
(governed by no existing case law or legislation), the court may
look at case law from the state of South Carolina for guidance in
framing a new rule of law.

The doctrine of stare decisis has four important
qualifications:



- First, the doctrine does not apply if the facts of the later
case are materially different from the earlier case that created
the rule of law.  Consequently, if a judge can "distinguish" the
facts of the earlier case, it is not used as precedent.
- Second, the doctrine does not apply if the state of the law
changes.  So subsequent legislation can render a common-law
decision invalid, after which it has no precedential effect.
- Third, only the central aspect of the court decision (called
the ratio decidendi) is given precedential effect. 
Extraneous statements of fact or law that appear within a case
(called obiter dicta) are not binding on later courts.
- Finally, the modern view of stare decisis allows
courts to depart from prior decisions when rigid adherence to
precedent would lead to injustice in a particular case and unduly
restrict the proper development of the law.  This, however, is
done in only the most unusual circumstances, since the very
reason for relying on judicial precedent is to lend certainty to
the law.  Citizens must be able to order their affairs around the
letter of the law as publicly expressed in judicial decisions.

Statutes in Common Law

If case law holds a dominant position in common-law
jurisdictions, what weight is given to statutes?  According to
formal theory, statutes are "the addenda and errata of the Book
of the Common Law."  As the British legal scholar William Geldart
explains in the 8th edition of Elements of English Law:
"...If all of the statutes of the realm were repealed, we should
still have a system of law, though it may be an unworkable one;
if we could imagine the Common Law swept away and the Statute Law
preserved, we should have only disjointed rules torn away from
their context, and no provision at all for many of the most
important relations of life."

These words, written in 1975, are less true now, at least in the
United States, where vast amounts of new legislation now govern
many legal questions.  Yet as statutes grow in importance, the
courts continue to play a critical role in law-making and in the
interpretation of precedent.  Not only are judges in the United
States charged with the task of interpreting statutes; they are
also empowered to declare statutes void if they violate the
Constitution.  Cases construing statutes have precedential effect
against future cases arising under the same statute.  In sum, the
explosive growth of legislation has occurred within a common-law
framework, which ensures the continued vitality of American case
law.

Obviously, the Civil Law Tradition and the Common Law Tradition
represent different legal philosophies.  Yet it would be wrong to
view the two traditions as wholly separate legal universes. 
National legal systems of one tradition have been influenced by
the other.  Stare decisis is not officially recognized in
Belgium, France, Germany, or Italy, but high court decisions in
these nations do influence lower courts.  Conversely, every state
within the United States has adopted the Uniform Commercial Code,
a true code that has modernized American commercial law.  Greater
cross-influence can be expected as civil-law and common-law
nations join together to create a working body of supranational
law to cope with transnational legal problems.

Legislative Processes

As has been noted, both civil-law and common-law jurisdictions
employ legislative and judicial processes to create law and to
keep old law up-to-date.  It must be emphasized that, in a
democracy, the role of an elected legislature is crucial, as such
a legislature, being chosen by the people in free elections,
guarantees the political legitimacy of the law it makes. 
Legislatures consider the ills, the needs, and the political
forces in society in the broadest sense--and undertake the
creation of new laws, rules, and regulations to respond to these.

Thus, the procedures by which a democratic legislature creates
law must be fair and perceived as such by the majority of the
population.

The United States has a bicameral (two-chamber) legislature,
referred to as the Congress.  The smaller chamber is the Senate,
which has 100 members--two elected from each of the 50 states. 
The larger chamber--the House of Representatives--has 435
members, with the number of each state's representatives
dependent upon each state's population.  Unlike other national
assemblies, the House and Senate have equal legislative powers,
with the single exception that all revenue (taxation) bills must
originate in the House.  All legislative proposals must pass in
both chambers to become law.

Each Congress sits for a two-year term, then adjourns.  Any
proposed legislation that has not been enacted during the term of
a Congress automatically dies when Congress adjourns.

The process begins with the introduction of a legislative
proposal--called a bill--into either the House or the Senate. 
Upon introduction, each bill is assigned a number that identifies
that bill throughout its life in Congress.  For example, one
recently enacted law--the Americans With Disabilities Act, which
guarantees certain rights to people who are physically or
mentally disabled--started the legislative process as Senate Bill
933 (S. 933).

The House and Senate maintain separate networks of committees to
analyze legislative proposals.  After it is introduced, a bill is
referred to the committee that has jurisdiction over the subject
matter of the bill, or it may be referred to several committees
with overlapping jurisdictions.  Senate Bill 933 was referred to
the Senate Committee on Labor and Human Services.  At the
committee stage of the legislative process, three events can
occur.



- First, the committee might hold hearings on the bill. 
Experts will be invited to appear as witnesses before the
committee to testify in favor of or in opposition to the proposed
legislation.
- Second, the committee may "mark up" the bill.  Mark-up is
simply a committee meeting that considers amendments to the bill;
clause-by-clause the bill is examined and language is deleted or
added.  In the process, the bill is literally marked up.
- Third, if the committee approves of the amended bill, it
reports the bill favorably to the full chamber.  A committee
report is written that explains the purpose and scope of the bill
and the reasons for recommending approval.  This committee report
and the amended bill are sent to the chamber for floor action.

The process described above occurs only if the committee favors
passage of the bill.  If the committee members are hostile or
disinterested, a bill usually sits in committee until Congress
ends, at which time the bill dies.  More than 90 percent of all
bills introduced in the U.S. Congress die in committee.  The men
who framed the Constitution and those who succeeded them and
refined the legislative process made it difficult to pass
legislation rashly.  And since the foundation of the American
republic, this has generally served the best interests of the
American people.

If the bill does manage to reach the full chamber, it is placed
on a legislative calendar that makes it eligible for action on
the floor of the chamber.  On the floor, the bill can be debated,
amended, and, finally, in accordance with rules of parliamentary
order, a vote will be taken on it.

If the bill passes in the first chamber, it is technically an act
of that chamber, but it is still popularly known as a bill.  The
clerk of the chamber prepares an official (engrossed) copy of the
bill, which is sent to the second chamber for its consideration. 
In the second chamber the three-step process is repeated.  The
bill is introduced, considered in committee, and then considered
on the floor before passage occurs.  This repetitive process has
two practical effects: the bill may not pass the second chamber,
or it may pass in an amended form.

If both chambers pass a bill in identical form, the measure--now
an act of Congress--goes to the president for his consideration. 
If, however, some amendment occurs in the second chamber, the
differences must be reconciled before the legislative process is
completed.

Frequently, reconciliation is accomplished easily.  The first
chamber may simply accede to the amendments made by the second
chamber, thus eliminating any differences.  If, however,
differences cannot be so simply resolved, a conference committee
is appointed, drawing its members from the ranks of both the
House and Senate.  The committee has authority to act only on the
precise differences between the House and Senate versions of the
bill.  The committee meets and writes a conference report that
recommends specific action to resolve each point of disagreement.

The report is then submitted to both chambers, which must then
vote to accept or reject the report in its entirety.

If either chamber rejects the report, new conferees may be
appointed to continue the process.  If both chambers accept the
report, they effectively pass the bill on identical terms so it
can be sent to the president as an act of Congress.

During the legislative process, Congress generates many working
papers.  These include the original and amended versions of a
bill, committee papers, and the verbatim transcript of floor
proceedings.  These documents are published, and they are used
extensively by American lawyers and judges.  If a statute is
unclear or its policy ambiguous, American courts analyze
congressional documents to ascertain the legislative intent
behind the statutory language.  This practice, however, is not
universal.  British jurisprudence has a long-standing tradition
that the words of the statute speak for themselves and cannot be
interpreted by examining other parliamentary papers.  Hence,
while both jurisdictions give full legal effect to statutes,
differing weight is accorded to subsidiary legislative documents.

It must be added that if the president does not approve the
newly-passed act of Congress, he may choose to veto it, in which
case it is null and void unless Congress overrides the veto by a
two-thirds majority vote in both chambers.  The president, thus,
becomes a major player in the crafting of federal law.

In the United States, the 50 states have their own legislatures
as well; these create laws applicable to the residents of each
state.  Municipal bodies add another layer of law and regulation.

In most of these bodies, democratic process is observed in that
they are either elected or held accountable to the popular will
by various means.  The United States, in particular, tends to
have layers of government--town, city, regional, state-wide, and
federal--that have flourished since the founding of the country
and that continue to contribute to the Common Law Tradition.

Judicial Procedure

Most civil- and common-law jurisdictions use a two-tier judicial
process.  Cases are first heard by a trial court, with the
possibility of review by one or more appellate courts.  The exact
process varies considerably from jurisdiction to jurisdiction. 
Nevertheless, how case law is created can be seen in this general
portrait of an American civil (noncriminal) trial and
appeal--which applies broadly to both the state and federal
judiciary.

An American trial court proceeding unfolds in four stages: the
pleadings stage, the discovery and pre-trial practice stage, the
trial itself, and the post-trial process, which ends with the
court issuing its judgment.

A civil action commences when the plaintiff--the party requesting
judicial relief--files a complaint with the court and "serves"
(presents) a copy of the complaint on the defendant, the party
against whom the suit is brought.  The complaint contains a
series of concise factual allegations that constitute the basis
of the plaintiff's claims on the defendant, which in civil cases
are frequently for financial damages as the result of alleged
injury, physical or financial.

Typically, a plaintiff may be an individual, a group of people,
or a corporation or similar body.  Likewise, a defendant may be
an individual, a corporation, or even a government official or
government body.  If the plaintiff has multiple claims against
the defendant, each claim is styled as a separate count within
the complaint.  At the end of the complaint is a prayer for
relief, which recites the remedy that the plaintiff seeks from
the court.

The defendant responds to the complaint by filing an answer.  The
defendant's answer addresses each allegation in the complaint
either by admitting or denying the allegation or admitting the
allegation but adding facts that avoid liability under the law. 
In addition to this defensive pleading, a defendant may bring a
cross claim against a codefendant in the lawsuit or a
counterclaim against the plaintiff.  When this occurs, the
opposing party has an opportunity to file a responsive pleading
to defend against the new claims.

The complaint is intended to reveal the general nature of the
suit that the defendant is called upon to defend.  The answer
rebuts parts of the plaintiff's case.  Accordingly, the pleadings
frame the claims and defenses before the court.

The next stage of the lawsuit--discovery and pre-trial motion
practice--develops the lawsuit in two directions.  Fact-finding
and issue refinement occur.  Fact-finding occurs through
"discovery"--a general term for several pre-trial
information-gathering procedures.  Attorneys may pose written
questions--called "interrogatories"--to a plaintiff or defendant
to elicit facts.  Attorneys may take out-of-court, sworn
testimony--called a "deposition"--from a potential witness. 
Attorneys may exchange documents through the use of subpoenas. 
Most of these practices occur without judicial supervision.

The liberal rules of discovery allow the parties to gather
information that is useful for building their own case and
understanding their opponent's case.  This knowledge enables the
parties to make an informed pre-trial settlement--perhaps an
agreed-upon monetary payment--or go to trial with a fully
prepared case.

The third stage is the trial itself.  A case may be tried by a
judge or by a jury acting under judicial supervision.  In a jury
trial, the judge decides questions of law while the jury makes
findings of fact.  In a bench trial, the judge decides all
matters of fact and law.

The trial begins with opening statements by the attorneys in
which they summarize the case they hope to prove at trial.  Then
the plaintiff's attorney explains his or her case.  Two types of
witnesses may be called to present oral testimony: one is the
occurrence witness, a person who can testify about some factual
event that gave rise to the legal dispute.  The other is the
expert witness, whose opinion can clarify a complex aspect of the
case for the judge or jury.  All witnesses are sworn under oath
and undergo direct examination by the plaintiff's attorney,
followed by cross-examination by the opposing counsel.  All
testimony is recorded verbatim by a court reporter.

In addition to delivering testimony, witnesses may introduce
physical and documentary evidence into the trial record.  The
opposing counsel might object to the admission of such evidence,
in which case the judge--applying the governing rules of
evidence--rules on the admissibility of the evidence.  Throughout
the trial, the rules of evidence are applied to screen out
unreliable or prejudicial material from the record.

After the plaintiff's case receives its initial presentation, the
defendant's counsel presents his or her case.  Defense witnesses
testify and proffer physical or documentary evidence.  The
plaintiff's attorney may cross-examine the defendant's witnesses
and object to the admission of defense evidence.

After the defendant's case concludes, the attorneys for each side
present closing arguments to the judge or jury.  Each argument
summarizes the evidence and presents the party's theory of the
case.

Then, in a jury trial, the judge reads a set of instructions to
the jury that states, in practical terms, how the governing law
requires a jury to analyze the evidence.  The jury deliberates in
seclusion to weigh the evidence and arrive at its verdict.  The
verdict, read in open court, is expressed as a judgment for the
plaintiff or defendant and indicates the amount of any monetary
award to the prevailing party.  Absent unusual circumstances, the
judge enters an order in accordance with the verdict.

In the case of a bench trial, no instructions are needed.  The
judge, however, may ask the attorneys to file trial memoranda
that discuss the applicable law.  The judge then issues an
opinion that states findings of fact and conclusions of law, and
announces a judgment in favor of one party.  A separate order is
issued consistent with the opinion.

The parties then have a fixed period of time in which they may
appeal the judgment to a higher court.  The appellate courts
systems vary from state to state, but litigants usually have an
appeal as of right from the trial court to an intermediate
appellate court.  Further appeal to the highest court in each
particular jurisdiction is often reserved for cases presenting
important legal or social questions.

The appellate court does not re-examine the entire trial record. 
Instead, the attorneys present the court with specific questions
for review that focus on the supposed errors made by the trial
court.  Each side submits a written "brief" to the court that
analyzes the issues in relation to the governing law.  The
attorneys also compile a joint appendix to their briefs that
contains relevant parts of the trial court record.

Appeals are heard by a panel of judges, often consisting of three
judges.  After the briefs are filed, the parties present their
cases directly to the panel in a 15- to 30-minute oral argument.

After the oral argument, the judges discuss and vote on the
case--with the majority determining the prevailing party.  For
unremarkable cases, the court announces its decision in a per
curium opinion.  Such an opinion merely announces judgment in
favor of a party, with a cursory statement of the reasoning
behind the judgment.  More significant decisions are handed down
in full opinions, each signed by the judge authoring the opinion.

The opinion recites the material facts, frames the legal issues,
and presents the decision of the court and the reasoning behind
it.  Any judge on the panel who agrees with the decision of the
court but not with the underlying reasoning may write a separate
concurring opinion.  Any judge who disagrees with both the result
and reasoning may write a dissenting opinion.

Of all the papers generated during this process, the appellate
opinion is the only American judicial document that is
systematically published.  This reflects the fact that it is
vested with precedential weight under American law and is thus
critical to the development, maintenance, and refinement of the
democratic legal framework in the United States.  Needless to
say, such precedential law-making is useless unless the records
and results are widely disseminated; thus, the centrality of
legal publishing to the entire process.

Legal Publishing

The legislative and judicial processes outlined above produce an
endless stream of cases and statutes that are captured in legal
publications.  Although the legal literature of every nation is
as unique as its law, such literature can be categorized into
recognizable groupings.

Primary sources are those materials that contain the
literal text of the law and can be cited as legal
authority--statutory codes, court reports, and administrative
gazettes are examples.  Secondary sources are other
materials that describe, explain, comment on, analyze, or
critique the law but that are not the text of the law--including
treatises, law journals, and legal encyclopedias.  A third
category, finding aids, refers to tools that lead the
researcher to primary or secondary source material; indexes and
case digests are representative finding aids.

Primary sources can appear in official (government) and
unofficial publications.  Often, official and commercial editions
coexist for the same set of legal documents--for example, the
opinions of the United States Supreme Court are published in one
official edition and four commercial editions.  Official editions
carry some imprimatur of authority; lawyers preparing court
memoranda usually must cite to official publications.  However,
commercial editions are generally better research tools because
they are published more quickly than their official counterparts
and usually contain supplemental research aids.

Legal Publishing in Common-Law Jurisdictions:  Statutory
materials fall into three categories: session laws, codes, and
annotated codes.  Session laws are chronological compilations of
legislative acts.  An example is the British Public General
Acts and Measures, which has compiled the Acts of Parliament
since 1831.

Session laws are difficult to use because they mix both current
and superseded law.  Hence, most jurisdictions also have a "code"
version of statutes currently in force.  As noted earlier, these
are usually not true codes but subject compilations of previously
enacted laws.  A typical example of this sub-genre is the
United States Code, which is an official compilation of
current statutes arranged in 50 subject areas.

One step beyond is an "annotated code," which presents sections
of statutes accompanied by paragraph summaries of cases that
construe each statutory section.  Hence the annotated code
delivers current statutory law and serves as a bridge to the
construing case law.

Court reports are chronological compilations of court opinions. 
Some court reports cover a single court. Others cover all
appellate courts within a jurisdiction.  Still others are topical
reports that compile opinions from many different courts on a
particular branch of law such as labor law.  Most court reports
have no indexes, so researchers must consult a companion set of
books--called case digests--to find citations to cases on a given
issue.  Usually, a digest exists for each court reporter.  So the
opinions of the United States Supreme Court appear in the
Supreme Court Reporter, which is indexed by the Supreme
Court Digest.

Administrative rules and regulations issued by government
agencies are usually chronologically published in a daily or
weekly register that may be republished in a code format.  Many
agencies are empowered to adjudicate claims arising under their
regulations.  These administrative law decisions are often
published in administrative case reporters, which may have their
own digests.

Finally, lawyers in common-law jurisdictions rely on a wealth of
secondary literature that ranges from practical treatises to
scholarly law journals.  These sources are useful at the
beginning of a research project to garner commentary on legal
issues and to collect citations to relevant cases, statutes, or
regulations.  Unlike the commentary of civil-law jurisdictions,
these secondary materials are not authoritative.

Legal Publishing in Civil-Law Jurisdictions:  Civil-law
jurisdictions use four types of basic legal sources: the code,
collected sets of "laws" (statutes, orders, decrees, and other
nonjudicial legal statements), doctrinal material, and
collections of cases.

Codes are published in various formats--some as concise
paperbacks, and others as multi-volume sets with elaborate
commentary.  Many editions are revised annually to incorporate
amendatory legislation.

The collections of laws fall into two categories.  Some nations
publish comprehensive official gazettes that contain legislation
and other nonjudicial legal materials ranging from laws to
official announcements.  France's unwieldy Journal
Officiel is representative of this publication type.  Other
nations issue a central publication that contains only laws,
secondary orders, and decrees.  Announcements and administrative
material intended for internal use are published separately.  The
virtue of this arrangement is that significant legislation and
regulation is collected in a manageable volume.  The German
Bundesgesezblatt typifies this sub-genre.

While common-law jurisdictions rely on decisional law to adapt
the law to changing conditions, this function is performed by
scholars in civil-law jurisdictions.  Scholarly writing, termed
doctrine, is remarkably influential.  Commentary in treatises or
legal encyclopedias that criticizes a judicial ruling may
convince later courts to ignore the ruling as an untenable
interpretation of the code.

Case law--called jurisprudence--occupies an informal position of
influence in civil-law nations.  Its influence may be due to the
abundance of court reports that memorialize judicial reasoning. 
Both Germany and France have elaborate networks of court reports.

Legal Publishing in the Computer Age:  Electronic
information technology is reshaping legal publishing and
research.  Lawyers and judges are now using powerful on-line
databases and CD-ROM materials to navigate through vast tracts of
electronic literature.

Two commercial on-line research services, Lexis/Nexis and
Westlaw, have become standard transnational legal research
tools.  Essentially both are huge electronic libraries that
contain information from cases, statutes, regulations, law
journals, and news sources.  Currently, Westlaw has legal
materials from China, Poland, and the United States. 
Lexis contains legal materials from Australia, Canada,
France, Ireland, New Zealand, Britain, and the United States.
Both also have legal materials from the European Community.

A researcher can access Lexis or Westlaw through a
personal computer and a modem or through the Internet.  The
researcher dials into one of the services, types in a personal
password, selects the desired database, and then types in a
"search statement."

The search statement contains distinctive words that the
researcher expects to find in relevant documents.  The researcher
links his or her search words together using system-defined
"connector" terms.  The system then performs a full-text search
for all documents containing the search words as they have been
connected together.  Nearly every word in every document in the
data file is searched, and the system retrieves only those
documents that satisfy the search statement.  For example, one
could find cases discussing birth defects caused by the drug
thalidomide by using the following search statement: 
thalidomide and birth defect.

Once the system retrieves a group of relevant documents, they can
be read from a computer screen, printed, or downloaded to a
computer disk.  The powerful advantage of Lexis and
Westlaw is that the researcher can by-pass the traditional
indexes and case digests of law books and directly search the
interior of the documents for a customized set of key words.

The CD-ROM format has created another exciting genre of
electronic legal literature.  CD-ROM--an acronym for Compact Disk
Read Only Memory--is a high-density information storage device
that looks pretty much like a music "CD."  Remarkably, one CD-ROM
can hold 200,000 pages of text in digital form.  Connected to a
single computer workstation, a CD-ROM can be searched in a manner
similar to Lexis and Westlaw.

CD-ROM publishing is making the collection of large bodies of
cases, statutes, and regulations from a given jurisdiction
easier.  Another trend is the topical library, which collects
treatises, cases, statutes, and regulations on a specific area of
law such as bankruptcy or taxation, all within the confines of a
single CD-ROM.

Suggested Actions

National leaders easily see roads and rail systems as vital
infrastructures within their countries.  They should regard their
national legal literature in the same light.  No nation can hope
to modernize under an archaic legal system, and no legal system
can be considered modern without an orderly body of working legal
literature.  But how does one design literature?

The first step is to recognize that much of this literature is
really government information--which is an invisible but
manageable resource.  Streams of government information flow from
law-making bodies and pool in legal publications that form larger
pools of knowledge in law libraries.  The totality of these
resources constitutes a legal information system.

An effective legal information system quickly incorporates new
statutes and cases into the literature to create a complete
record of all legal authority.  It also permits researchers to
locate easily discrete pieces of law in the mass of literature.

While a government seldom has an opportunity to build an entirely
new information infrastructure, far-sighted officials can act
strategically to improve the flow of legal information within
their nations.  They  may find the following points useful.



- Government automation.  Legislative and judicial
bodies should consider using automated text processing systems to
produce electronic versions of new statutes and judicial
decisions.  Electronic legal documents can be loaded easily onto
a government-sponsored legal database or transmitted to
commercial database vendors.
- An equilibrium of public and private sector
publishing. Governments should nurture a diversified body of
official and commercial legal publications.

The private sector can occupy an important role in any effective
legal information system.  The legal literature of developed
nations has been greatly enriched by innovative commercial legal
publications.  Usually vigorous competition among legal
publishers has led to efficient production of superior
information products at market-responsive prices.  Consequently,
governments should not retain any monopoly over legal publishing,
nor should the state condone any commercial monopoly; instead,
courts and legislatures should make the text of new laws
available to all potential publishers on equal terms.

While promoting robust private publishing, governments would be
wise to publish official editions of important legal documents. 
Citizens of the poorest means need access to laws they are
expected to obey.  Official publications can also promote
democracy by affording citizens a ready means to examine the laws
created by their elected officials.



- A basic print literature.  Governments and the private
sector should attempt to produce basic print editions of
important legal materials for citizens who lack the technology,
expertise, or financial resources to access electronic legal
documents.  Until computer literacy becomes widespread, the
technology will stand as a barrier to citizen access to the law.
- An advanced electronic literature.  Governments should
encourage the development of a body of electronic legal
literature for technologically sophisticated researchers.  This
literature should be made available extraterritorially to promote
international trade and investment.
- Archival and current sources for legislation.  Both
the print and electronic literatures should have separate sources
that capture archival and current versions of statutory law. 
Archival sources for statutes are needed to preserve a complete
historical record of law-making.  However, streamlined codes or
compilations of current law are needed for daily legal research.
- Design factors.  Publications should be designed to be
interconnective, current, and equipped with powerful indexes. 
Whenever possible, related legal materials should be
cross-referenced so that laws from different sources are tied
together.  Currency is critical, so that citizens can order their
lives around present legal norms.  Indexing is also important. 
Hours invested in carefully preparing a useful index saves many
more misspent hours of research by judges, legislators,
attorneys, and others.
- Legal depository programs.  Governments may wish to
establish and maintain depository programs for legal materials. 
The U.S. government has operated a long-standing depository
library program whereby government publications are sent to
libraries free of charge on the condition that the libraries
catalog and maintain the publications for public use.  Such a
depository program frees government offices from the burden of
serving as archival centers for their legal publications.
- An accurate legal record.  Completeness and accuracy
are of paramount importance.  Courts and legislatures should
oversee the preparation of official and commercial editions of
their legal documents.  It may be appropriate to authorize a
government official to inspect and certify that an edition
accurately represents the laws it purports to publish.  Such
oversight is essential to maintain public confidence in the
national legal literature.

STYLES OF STATUTORY DRAFTING

The great codes of civil-law jurisdictions are celebrated for
framing legal ideas in clear, elegant prose.  In contrast,
statutes from common-law jurisdictions tend to be technically
worded.

Compare, for example, the provisions in the French Civil Code for
the protection of civil rights with an analogous U.S. statute. 
The French Civil Code reads:  "Every Frenchman shall enjoy civil
rights."  The U.S. statute reads: "Every person who, under color
of any statute, ordinance, regulation, custom or usage, of any
State or Territory or the District of Columbia, subjects or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity or other proper proceeding for redress...."

BORROWING RULES OF COMMON LAW

A court in a common-law jurisdiction may borrow precedent from a
sister jurisdiction to resolve a novel legal question.  This
practice can be seen in the extraterritorial persuasive authority
of Bridges v. Hawkesworth, an 1851 English case famous for
defining the possessory rights of those who find lost objects.

In Bridges, a person entered a shop and discovered a
bundle of money on the floor.  It had accidentally been dropped
there by a stranger.  The finder handed the bundle to the
shopkeeper, expecting the latter to locate the owner.  When the
true owner could not be identified, the shopkeeper attempted to
retain the banknotes and the finder brought suit.

All parties agreed that the unknown true owner had paramount
legal title to the property; at issue was the limited right to
possess the lost goods.  So the question before the court was
this: When lost goods are found by one on land owned by another,
who may rightfully possess them--the finder or the landowner? 
Ruling for the finder, the court held that where lost personal
property is discovered in a public portion of a shop, the finder
has a possessory right superior to all but the true owner.  Had,
however, the goods been located in a nonpublic part of the
premises under the shopkeeper's exclusive control, then
possession would vest with the landowner.

Common-law jurisdictions around the world have both adopted the
rule of law stated in Bridges and distinguished the case
to frame new rules of law for slightly different circumstances. 
In Kowal v. Ellis, a Canadian court applied Bridges to
award a finder possession of a pump found unattached on private
land.  Similarly, a New Zealand court held that police--as
finders--were entitled to possess a large quantity of money
discovered while executing a search warrant.  An Australian
court, applying Bridges, found the evidence insufficient
to award a putative finder custody of a cache of English coins
found on board a ship, while an Irish court distinguished
Bridges to deny a finder possession of a ninth century
Christian treasure--awarding it instead to owners of the land on
which the treasure was found.

HOW A U.S. SUPREME COURT OPINION IS DISSEMINATED

Moment of release:  As an opinion is read from the bench,
the Clerk of the Court distributes a "bench opinion" to
journalists.  Simultaneously, the decision is released on a
computer network--called Hermes--to major subscribers including
wire services, newspapers, commercial publishers, and public
information networks.

2 hours later:  Researchers can read the opinion on either
of two on-line legal databases: Lexis (Mead Data Central)
and Westlaw (West Publishing Company).

3 days later:  The Clerk of the Court issues approximately
400 printed copies of the "slip opinion" to the public.

5 to 7 days later:  The opinion appears in commercial
looseleaf publications such as the United States Law Week
(Bureau of National Affairs) or the Supreme Court Bulletin
(Commerce Clearinghouse).

1 month later:  The slip opinion is edited and appears in
paperback editions--called "advance sheets"--of two major
commercial court report sets: the Supreme Court Reporter
(West Publishing Company) and the United States Supreme Court
Reports--Lawyers' Edition (Lawyers' Cooperative Publishing
Company).

6 weeks after the end of the Court's term:  The Court
issues corrections to the opinion, and an interim bound edition
of the Supreme Court Reporter appears.

6 to 18 months later:  The opinion appears in a paperback
supplement (the "preliminary print") to the official edition of
the Court's opinions--the United States Reports (United
States Government Printing Office).

2 to 2.5 years later:  Once the Court announces that no
further corrections will be made to the opinions for a particular
term, bound volumes are issued for the Supreme Court
Reporter and the official set, the United States
Reports.  (The Court is upgrading its text preparation
system, which should reduce the delay in the publication of the
preliminary print and bound editions of the opinions.)

NATIONAL LEGAL DATABASES

France:  Juridial -- Full text of all French codes
and documents from the Journal Officiel (1987- );
abstracts of earlier laws from the Journal (1936- ).  Full
text opinions from the Cour de Cassation (1960- ),
Conseil constitutionnel (1958- ), and Conseil
d'Etat (1958- ).  Also available are bibliographic references
to 200 journals and European Community law material.  France also
has Lexis-France, which is similar to Juridial.

Italy: Italguire -- Full text of national and
regional legislation.  Abstracts of the constitutional court
(1960- ) and official head notes (massima) for cases from
the Supreme Court: civil division (1962- ), criminal division
(1966- ), and certain lower Italian courts.  Also available are
treaties, some European Community legal documents, and
bibliographic information on secondary literature.

Switzerland:  Swisslex -- Full text of federal
decisions (1954- ) and cantonal decisions (1965- ), federal
statutes, and some secondary literature including a Swiss legal
bibliography.  Federal cases are trilingual (French, German,
Italian); other documents may be bilingual.

Source:  Christiane Serkis Bishof.  "Legal Databases in France,
Switzerland, and Italy," 21, International Journal of Legal
Information 7-15 (1993).

BIBLIOGRAPHY

Cohen, Morris, Robert Berring, and Kent Olson.  How to Find
the Law, 9th ed.  St. Paul, Minnesota: West Publishing Co.,
1989.  A standard work on American legal bibliography that also
has chapters on English and Canadian legal research, general
foreign law research, and international law research.

David, Rene and John E. C. Brierley.  Major Legal Systems of
the World Today: An Introduction to the Comparative Study of
Law, 3rd ed.  London: Stevens & Sons, 1985.  Presents an
excellent scholarly introduction to the civil- and common-law
traditions.

Plucknett, Theodore.  A Concise History of the Common Law,
5th ed.  Boston, Massachusetts: Little Brown, 1956.  An
approachable history of the English common law.

Reynolds, Tom and Arturo Flores.  Foreign Law: Current Sources
of Codes and Legislation in Jurisdictions of the World. 
Littleton, Colorado: Rothman, 1991.  A truly magnificent
three-volume overview of the legal publishing regimes of more
than 150 nations and many supranational law-making bodies.

Willet, Edward.  How Our Laws Are Made.  Washington: U.S.
Government Printing Office, 1990.  The standard nontechnical work
on the U.S. legislative process.

CONTACTS

American Association of Law Libraries
53 West Jackson Boulevard, Suite 940
Chicago, Illinois 60604  USA
Tel.: 312-939-4764

International Association of Law Libraries
Law School Library
1121 East 60th Street
University of Chicago
Chicago, Illinois 60637  USA
Tel.: 312-702-9599

Professor Bruce Kennedy
University of Toledo
College of Law Library
2801 West Bancroft
Toledo, Ohio 43606  USA
Tel.: 419-530-2736
Fax: 419-530-2821

About the Author:  Bruce Kennedy is a law librarian and
associate professor of law at the University of Toledo College of
Law in the State of Ohio.

____________________

Freedom Papers Series:
Editor:  Paul Malamud
Design:  Thaddeus A. Miksinski, Jr.

September 1995

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