Accessing the law.

PREFACE

In this special section we feature articles that continue to address questions of access to the law initially raised in The Journal by Judge Richard Arnold (1) and that also address the related problems posed by the application of technological advances to appellate practice. (2) Judge Arnold's essay has spawned a major round of academic (3) and judicial (4) comment on the topics of access to and reliance on opinions not designated for publication by appellate courts. As with all important questions of policy, the use of publication as a determinant of the precedential or persuasive value of prior decisions opens the doors of the intellectual marketplace for consideration of widely divergent points of view and related subjects. In this marketplace, appellate specialists thrive, being trained in argument and reasoning by analogy.

The articles in this section expand the discussion initiated by Judge Arnold's essay and his subsequent panel opinion in Anastasoff v. United States. (5) They provide historical perspective and analyze contemporary phenomena that those seriously interested in the integrity of the appellate process should find compelling. The continuing attention paid to publication and "no citation" roles reflects the philosophical and practical importance appellate courts attach to publication decisions, which essentially rank their opinions in terms of their importance for future litigation.

As the historical sweep of Kenneth Ryesky's opening essay demonstrates, the uncertainty engendered by the debate over citation practice and the use of unpublished opinions is not without precedent. Intertwined as they are with the availability of online sources that have ended our dependence on the publication decisions of appellate courts, issues related to the use and citation of appellate opinions appear to the legal historian as only among the most recent in a continuing series of changes that improvements in technology have forced upon appellate practice and process.

Another important consideration for appellate advocacy and decisionmaking--the use of and reliance on data available from online sources--is examined by Coleen Barger, The Journal's developments editor, who documents the recurrent problem of disappearing and inaccurate data. She notes the actual and potential problems posed by judicial reliance on online sources of information that too often pose troubling consequences for the integrity of resolution when online data...