October 02, 2009
One thing to consider when doing legal research on the Internet is the issue of authentication. It's one thing to find authority online. It's another to use it in court. Various courts have rules about what precedent can be used and, more particularly, from where it can come. It seems odd in the days of courts having their own official web sites that the opinions which they distribute through these sites may not be official.
To date, only one court in the United States, the Supreme Court of Arkansas, has bit the bullet and gone purely electronic. Arkansas Supreme Court Rule 5-2 states that official report of decisions issued after February 14, 2009 will be an electronic file "created, authenticated, secured, and maintained by the Reporter of Decisions on the Arkansas Judiciary website." Note that term "authenticated."
Why is authentication such an issue? Courts traditionally require authority to be from official texts published in named reporters. They have essentially told lawyers and the public that these sources for opinions are authentic for use in court. Printed reporters go through a rigorous editing process, whether they are produced by the government or a commercial publisher. Opinions are organized in books which are widely accessible to legal professionals through law libraries and other sources. Standard citation formats make it easy to find opinions in books. Slip opinions and advance sheets are temporary forms to the bound book's permanent citation. In essence, the text will never change and permanent citations make opinions immediately findable. Courts like that permanence.
The Internet, however, poses all kinds of problems when it comes to authenticated texts. There is not much permanence on the web. Web sites and addresses come and go with regularity. Documents can disappear or be regularly edited without any indications of change in the text. Moreover, documents can change through the course of redistribution. The source of a document retrieved via the Internet has a lot to do with its veracity. If an opinion is retrieved from a Court's web site or a university which archives opinions, Cornell's Legal Information Institute, for example, the text is likely accurate. That's still not good enough for the courts, however.
Take the United Supreme Court, for example. Here's exactly what the Court says about the difference between printed and online versions of opinions:
Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and--one year after the issuance of that print--by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.
So, how does a researcher approach the problem? The first is to understand the rules of the jurisdiction when it comes to citation. Some courts will require a pleading to cite to the official reports of the jurisdiction. Not all states publish official reports. Table T1 in A Uniform System of Citation indicates which states have current reports. Those without usually require citation to the West regional reporter for that state. The federal courts usually cite to the Federal Reporter and the Federal Supplement. However, some federal courts, such as Bankruptcy or Tax Court, have their own reporters. Check the local rules of the district or circuit for the citation standards.
The second is to understand the online source for a document. That means reputation of the site is important. A good reputation implies that the content is likely accurate. Use trusted sources for opinions and other documents. The next step is to cross reference the material from the online source with the court's official source. Research on the Internet is a matter of convenience, and the courts recognize that fact. But they still tend to like those permanent, unchanging sources for case law.
One other major legal source where authentication is important is the Government Printing Office (GPO). That site has been hosting PDF versions of the CFR, Federal Register, the Congressional Record, and House and Senate Reports since 1996. GPO recognizes that there can be problems with electronic documents and is addressing them by creating a new site called Federal Digital System, or FDSys. The site will address issues such as publishing documents in forms that will make the content available despite changes in technology. FDsys will also address multiple versions of documents by adding version controls to electronic documents. GPO will migrate all government documents they publish to FDsys by the end of 2009.
This is an area of transition for legal publishing. It seemed a breakthrough for the courts to even cite to unique documents on Lexis and Westlaw when those companies added electronic citation information to their contents. The rules are only now beginning to formulate as electronic publishing moves past the convenience stage to the format of choice for government publications. It will take some time before courts adopt authentication controls for their own documents. Arkansas' step is a good first move. A lot of other courts will be watching to see how this works out.
Mark Giangrande is a legal research expert at DePaul University. He has created and managed the law school's computing facilities, and taught advanced legal research at the DePaul University College of Law Library. He has practiced law librarianship since 1976 and written numerous articles on a number of subjects, including the use and management law school computing and electronic legal research strategies. He is a member of the American Association of Law Libraries and the Chicago Association of Law Libraries.
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