Abandoning law reports for official digital case law.

• Author: Martin, Peter W.

1. INTRODUCTION

   Like most states Arkansas entered the twentieth century with the responsibility for case law publication imposed by law on a public official lodged within the judicial branch. The "reporter's" office was then, as it is still today, a "constitutional" one. (1) Title and role reach all the way back to Arkansas's admission to the Union. Since the Arkansas Supreme Court's first term in 1837, a Reporter has collected and published the justices' important decisions in numbered volumes of the Arkansas Reports. By 1900 the series had reached volume 67. Representative of the era, that volume was prepared by T.D. Crawford, Reporter, printed by the Gazette Publishing Company of Little Rock, and copyrighted by the state's secretary of state. In addition to the text of judicial opinions, the book consists of a table of contents, a table of cited cases, several appendices, including one containing statements eulogizing a deceased member of the Arkansas bar, and lists of cases decided but not reported plus those the court disposed of orally. It concludes with an index. (2) Spanning legal topics from "abandonment" to "witnesses" and including all cited statutes, this editorial addition allowed a researcher to determine whether, for example, a particular volume included any cases addressing the liability of railroads for killing livestock and, upon finding that one did, turn directly to them. Accompanying each decision is an additional set of editorial enhancements, by 1900 more or less standard in case law reports. These include headnotes that summarize the court's holding or holdings with a direct reference to the pertinent portion of the opinion, a statement of the underlying facts and the ruling below, followed by summaries of the arguments made and authorities cited by counsel for the parties on appeal and their names. (3)

   Unlike most states Arkansas carried this publicly run system of case law dissemination into the twenty-first century. Over the years it had been altered in response to changes in judicial structure and practice, the expectations of lawyers and judges, and, significantly, the existence of commercial alternatives, first in print and then in electronic form. But volume 340 of the Arkansas Reports, published in 2000, is remarkably similar to its century-old predecessor. A few important features are different. First, Arkansas's practice of copyrighting the reports ended with volume 172, published in 1927. Second, when the state judicial system acquired an intermediate appellate court, the Reporter was assigned responsibility for publishing its decisions as well, although only those that court deemed important enough for publication. (4) Volume 340 of the Arkansas Reports, published in 2000, is, as a consequence, bound together with volume 69 of the Arkansas Appellate Reports. It was printed by an out-of-state rather than a local firm. (5) For the most part, however, the state's law report volumes of recent vintage contain the same core elements as their counterparts of a century or more before--decision texts compiled and edited by a Reporter, accompanied by research aids including tables, indices, and headnotes, prepared by the same judicial official. (6)

   In 2009 that continuity came to an end. After over 170 years, Arkansas ceased publication of print law reports. Volume 375 of the Arkansas Reports, bound together with volume 104 of the Arkansas Appellate Reports, is the last that will appear. Arkansas's Reporter continues to be responsible for putting out an official report of the state's appellate decisions. Indeed, that responsibility has been expanded to encompass much larger numbers of them. What has changed, and changed radically, is the means. For all decisions handed down after February 12, 2009, not books but a database of electronic documents "created, authenticated, secured, and maintained by the Reporter of Decisions" constitutes the "official report." (7) With justifiable pride, the state supreme court proclaimed Arkansas to be the first jurisdiction in the nation to switch from law report publication to official legal data distribution. It will not be the last. (8)

   This article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and its Reporter's official database from the opinion archives hosted at the judicial websites of most appellate courts in the United States (including that of the Arkansas judicial branch between 1996 and 2009). The article next explores the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. That requires focusing on the importance of the Reporter's role in this shift from print to digital case law publication and leads to speculation about which other states have the capability and incentive to follow Arkansas's lead. That, in turn, necessitates a comparison of the full set of measures the Arkansas Supreme Court and its Reporter of Decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas's new system of case law dissemination and the degree to which principal components of this one state's reform can provide a useful template for other jurisdictions.

2. WHEN AND WHY PUBLIC LAW REPORT PUBLICATION ENDED IN OTHER STATES

   By 1900 the Arkansas Reports had a serious competitor. Volume 1 of the South Western Reporter, a component of West Publishing Company's National Reporter System, appeared in 1887. From the start it covered all the cases reported in Arkansas's official reports, drawing its core contents, the decision texts, directly from the state publication, but substituting its own headnotes and indices for those prepared by the Arkansas Reporter. This commercial series covered four other states as well--Kentucky, Missouri, Tennessee, and Texas. While cases from these states were not necessarily of any greater interest to Arkansas's lawyers and judges than those of others, for the state supreme court's law library and other large law collections, the full West system furnished a compellingly attractive way to collect and to research the entire nation's case law. Because of the South Western Reporter the writer of an Arkansas judicial opinion or brief could not be sure that the reader would be working with the same set of law reports. Early on, that led the Arkansas Supreme Court to adopt the opinion-writing convention, when citing a case, of providing its volume and page numbers in the South Western Reporter, immediately (9) following those indicating its location in the Arkansas Reports. There was no straightforward match up. The cases reported in volume 67 of the Arkansas Reports were spread through volumes 50 to 55 of the South Western Reporter. (10) For states like Arkansas where this could be done without delaying the regional report, West's policy was to publish the official report citation along with each case so that those using its volumes could obtain the parallel reference for insertion in a memorandum, brief, or opinion without having to consult another set of volumes or a separate cross-reference table. (11) The Arkansas Reports had to acknowledge the West reporter in return, providing parallel citations to it. That began in 1938. (12) Neither set of competing reports marked the location of page breaks (star pagination) from the other within decisions. Therefore, to make parallel pinpoint references to a specific passage a researcher had to consult both sets. However, neither the rules of the court at the time nor dominant practice required parallel pinpoint references. (13)

   Both sets of reports were able to furnish parallel case citations to the other because of another important feature of twentieth century law report publication, the issuance of incremental paperbound compilations commonly called "advance sheets" ahead of the final hardbound volumes. West offered advance sheets for the South Western Reporter; Arkansas, advance sheets for the Arkansas Reports. (14) Both contained the volume numbers and pagination of the final books. As a consequence, those producing the respective hardbound versions could extract parallel citations from the other's advance sheets. Advance sheets also enabled cross references to very recent cases to be filled in before final publication and, of course, afforded access to citable versions of decisions long in advance of their appearance in the final, hardbound reports.

   While the Arkansas Reports held their own against the West volumes as a source of Arkansas case law, there were numerous dimensions in which they and other official state reports simply could not compete. To begin, the regional reporter was but one component of a comprehensive, integrated library that West offered courts, public law libraries, and practitioners. In addition to state case law, the company published federal reports and statutes, (15) practice guides, and treatises. West sales representatives were ready to assist potential purchasers with advice and financing. (16) Its editorial staff facilitated cross-jurisdictional research by imposing a single matrix of legal categories on all federal and state case law through headnotes, individual volume indices, and case digests. All these advantages and more West could and did advertise in professional journals, at bar meetings, and through other forms of contact with law students, lawyers, and judges. The comparative strengths that West emphasized in marketing its regional reporters included the quality of the headnotes and their consistency over time and across jurisdictions, the pace at which cases moved from advance sheets to bound volume, and the quality of its editorial review of decision...