From Pens to Pixels: Text-Media Issues in Promulgating, Archiving, and Using Judicial Opinions

I. INTRODUCTION The American judicial system, like the British system on which it is based, relies on precedent and therefore requires the availability of prior judicial opinions in order to function. (1) Whether judicial opinions are the law, or merely evidence of the law, or some hybrid of the two, (2) text media are inextricably entwined with adjudicating the law in America. (3) For the purposes of this article, the term "text-media technology" (or "text-medium technology" in the singular) broadly encompasses any means by which any textual verbiage information is encoded, stored, accessed, communicated, retrieved, and/or manifested, including the carving with a chisel of the Commandments upon stone tablets by or at the behest of the Almighty, the hand-scribing with quill pens of the words of the Law upon scrolls of parchment skins, ink-on-paper printing, electrical impulse encoding on a magnetic disk, the editorial revision of the same using a word-processing computer program, the subsequent transmission of the same through fiber-optic cables, or any other encoding, manipulation, or preservation of words using means between or beyond the aforementioned extremes. The changes in the state of the text-media technological arts have brought several text-media issues to the fore in the availability of judicial opinions in the official reporters and elsewhere. (4) By way of selected examples, this article will address and illustrate some of the text-media technology issues that pertain to judicial opinions, officially reported and otherwise. (5) The particular classification scheme of such issues in this article is not intended to be inviolate; some issues may fit under more than one heading, and some issues may, in a given instance, functionally interplay with one another in ways not covered in this article. The reader's indulgence is beseeched accordingly. Following this Introductory section, Part II of this article will address issues relating to preservation of textual data and non-textual data. Discussion of accessibility issues will follow in Part III, including cost factors, finding aids, and the impact of textual characters. Part IV of the article will then turn to the issues of timeliness of a judicial opinion's availability. Issues impacting reliability, including textual accuracy, type fonts, textual stability and indicia of provenance, will then be covered in Part V, followed by a short discussion in Part VI of the various sorts of outside information to be found in some bound reporters. This article will conclude that text-media issues are relevant, and must be comprehended and heeded, for the legal profession uses judicial opinions as precedential authority. II. PRESERVATION OF JUDICIAL OPINIONS A judicial opinion does not exist in a vacuum. The precedent that forms the very core of our legal system connects every judicial opinion to others that precede or follow it. Accordingly, the opinion must be preserved; the judge's scribbled perfunctory notes alone would not accomplish preservation, [f]or the arguments of the judges, ... would not always be intelligible; and they would become known to but few persons, and being written on loose papers, [would be] exposed to be mislaid, and soon sink into total oblivion. (6) Indeed, during the formative era, (7) many individual judges' bench notes from their decisions often left much to be desired as comprehensible and usable materials for other legal practitioners and researchers. (8) If the only use of a judicial opinion were by the individual judge who issued it, then the opinion need only be committed to the judge's memory after it had been imposed upon the parties to the controversy. If such were the case, then the judge who issued the opinion would, at most, need only to write down a few mind-jogging notes in order to remember the opinion. But in a system such as ours, a vital first step is to manifest the opinion into some sort of textual format. …