From pens to pixels: text-media issues in promulgating, archiving, and using judicial opinions.

• Author: Ryesky, Kenneth H.

1. 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.

2. 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. (9)

   Problems have arisen with judicial opinions that have not been set forth in writing or other textual manifestation. Where, for example, an oral ruling is made by one judge in a case, and the litigation then goes before a second judge on a procedural issue, the second judge may well misapprehend the unwritten decision of the first. (10) And if a judicial opinion needs to be reduced to text medium in the context of the same litigation, then it surely needs to be put in textual form if it is to apply to other cases.

   1. Preservation of Textual Data

      Even where a judicial opinion is set forth in intelligible text on paper (or other medium) and accessible to the public in the courthouse records, there are obvious preservation issues where but a single copy exists. Wartime activity, courthouse fires, dots, insurrections and similar calamities have been known to permanently obliterate judicial opinions where no specimen other than the original one in the court files is extant. (11) And even multiple copies can deteriorate over time when subjected to the elements. (12)

      Published judicial opinions, with their relatively wide circulation, have some prospects for surviving such devastations. The experience from the fire at the Galveston courthouse during the Civil War is quite instructive in that regard. Those opinions that were not officially reported but that were published in the Law Journal have survived, but those which were not so published have become extinct. (13) In modern times, the publication of a judicial opinion, officially or otherwise, sets into motion certain bureaucratic and commercial processes that necessarily entail the manifestation of that opinion in several textual versions, thus better ensuring the survival of the opinion's text in one form or another. (14)

      When the only commercially practicable text medium was some form of ink and paper, publication and propagation of a judicial opinion ensured that the opinion text would somehow be preserved for posterity. But amidst all of the predictions of and progress towards the ideal of a totally paperless virtual law library, (15) preservation once again becomes an issue in the twenty-first century, addressing matters such as back-ups for the "master copy" that resides in the central location in order to ensure its preservation in the event of a service interruption, computer crash or inadvertent text deletion. (16)

   2. Non-textual Data in Judicial Opinions

      Though this article deals with text media, it must be understood that the digitalization of data has blurred (and for many applications, obliterated entirely) the demarcation between text and other types of data. (17) Moreover, data other than words and letters are sometimes desirable or necessary in order to adequately express an idea. Accordingly, a judicial opinion may well include critical data besides and beyond its textual letters, words and paragraphs.

      Over the years, several published judicial opinions have included graphic illustrations such as maps, diagrams or photographs. The various judicial opinions involving patents are, of course, replete with illustration. (18) Even Justice Cardozo, ever noted for his ability to elucidate a complex case through his skilled command of the English language, had occasion to deliver a judicial opinion that employed and referenced an illustration. (19)

      Many of the earlier illustrated published opinions dealt with real property, and featured maps or plats of the land in question. (20) Real property issues continue to be conducive to illustration with maps and plats, (21) but are hardly the only subjects of graphic illustration in judicial opinions. One early twentieth century opinion involving an election contest, for example, features illustrations of various types of crosses. (22) Other sorts of illustrations that have been included in judicial opinions include voting district maps, (23) product labels in trademark litigation, (24) allegedly defective products in product liability cases, (25) accident scenes, (26) equipment in industrial and construction accident cases, (27) genealogical charts in questions of trust and estate succession, (28) facsimiles of documents from commercial transactions, (29) documents created in connection with bank accounts, (30) copies of advertisements whose legality was at issue, (31) scenes of arrest where constitutionality of evidence is at issue, (32) copies of cattle brands where livestock ownership was at issue, (33) and a piece of printer's type. (34)

      Several military court martial opinions have lent themselves to illustrations, including that from the proceedings against lieutenant William Calley, the most notorious military justice defendant from the Vietnam era (if not from all time). It is illustrated with several maps, diagrams and photographs of the site of the infamous My Lai massacre. (35)

      Given the infamous complexity and confusion inherent in the Internal Revenue Code, (36) it is almost inescapable that the adjudicators of taxation cases have had occasion to elucidate their opinions with illustrations. Visual aids in tax litigation opinions have included diagrams of investment structures, money movements and transfers, (37) graphs of a taxpayer's stock investment activities, (38) copies of commercial transaction documents where the sale's location was relevant to its tax treatment, (39) illustrations of steel-mill crane structures whose status as either buildings or equipment was at issue for purposes of allowing depreciation and investment tax credit, (40) a flow chart of the steps used to process phosphate where the issue was allocating costs and depreciation between mining and non-mining activities, (41) and a copy of an altered Form 1040 filed by a tax protester. (42) To the financial and aesthetic delight of the fine arts world, a Tax Court opinion, holding that violin bows used by professional musicians could, under the then-existing tax law, qualify for accelerated cost recovery depreciation...