Electronically Manufactured Law

TABLE OF CONTENTS I. INTRODUCTION II. WHY THE SHIFT TO ELECTRONIC RESEARCH MERITS ATTENTION A. Medium Theory and Legal Historical Scholarship B. Legal Realism C. Unpublished Decisions, Non-Citation Rules, and Federal Rule of Appellate Procedure 32.1 D. Existing Legal Scholarship and Empirical Data III. A DETAILED COMPARISON OF PRINT AND ELECTRONIC RESEARCH PROCESSES--IDENTIFYING SALIENT DIFFERENCES A. Electronic Researchers Are Not Guided by Key System Information to the Same Extent as Print Researchers with Respect to Identifying Relevant Theories, Principles, and Cases B. Electronic Researchers Do Not Encounter and Interpret Individual Cases Through the Lens of Key System Information to the Same Extent as Print Researchers. C. Electronic Researchers Are Exposed to More--and Different--Case Texts than Print Researchers IV. COGNITIVE PSYCHOLOGY-DERIVED PREDICTIONS ABOUT THE CONSEQUENCES OF A CHANGED RESEARCH PROCESS: DIVERSITY IN FRAMING AND TILTING AT WINDMILLS A. Principles and Theories of Cognitive Psychology 1. Influence of Labeling 2. Influence of Categories 3. Confirmatory Bias and Selective Information Processing B. Application of Cognitive Psychology Principles to Legal Research 1. Diversity in Framing 2. Tilting at Windmills V. THE BROADER IMPACTS OF DIVERSITY IN FRAMING AND TILTING AT WINDMILLS A. Diversity in Framing B. Tilting at Windmills VI. CONCLUSION I. INTRODUCTION Law now arises, evolves, and is practiced and applied through an electronic medium. From top to bottom, the law proceeds through electronic channels. First, with respect to the content, dissemination, and digestion of judicial opinions, judges cite to Internet sources in opinions available online, bloggers post immediate reactions to opinions, and scholars upload analyses to the Social Science Research Network. In the formation of legal arguments and documents, attorneys research in electronic legal databases, use word processing to draft documents, exchange work product over e-mail, and file papers electronically. Additionally, in the development of case facts, smoking guns take the form of errant emails, document reviews mine electronic databases, and depositions are videotaped. Electronic resources affect even the way attorneys are hired and retained--students use Above the Law1 to vet firms, firms employ Google searches to vet law students, and clients use web profiles to vet attorneys. The recent furor following Kennedy v. Louisiana (2) over the Supreme Court's failure to discover that the Uniform Code of Military Justice authorizes the death penalty for child rape (3) underscores law's entanglement with the electronic medium. This oversight by litigants and the Court alike suggests a pitfall of electronic research. Researchers may have become dependent on the seemingly-inclusive "All Federal Cases" database; however, military cases do not appear in this database. That the omission was brought to light on the blogosphere (4) and quickly made its way onto the pages of the New York Times (5) and ultimately into a petition for rehearing (6) attests to the power of online legal commentary. In this new age of electronically manufactured law, the raw materials of law--case texts--increasingly reside in digital form and are studied by legal researchers using digital means. A description of the not-so-distant past when the raw materials of law were bound in hardcopy print illustrates the magnitude of this change: Lawyers are probably more dependent upon the literature of their profession than their prototypes in any other field. They simply cannot function away from a working law library, because law books are not merely the repositories of secondary reference materials, but are the actual and indispensable source material of the law. …