Author:Bashman, Howard J.

Just as technology has tremendously changed the manner in which appellate lawyers, judges, and their staffs perform legal research over the past twenty-five years, moving from books and physical law libraries to online legal research services and access via computers, hand-held cellular devices, and the like, so too has technology revolutionized the manner in which many people access nearly every other type of information, including news coverage.

If I wanted to read an article appearing in The New York Times on any day in 1992, and if I was fortunate enough to have access to a computer that was connected to the internet--probably by a slow-speed dialup service over a telephone modem from home--I could eventually manage to download and read the article online. But the tar more common way to see what was in The New York Times in 1992 was to purchase a copy from a newsstand.

More recently, the internet has become ubiquitous, readily available at high speeds on my computer at work, on my computer at home, on my cell phone, and perhaps even on my television. If I want to see what's in today's edition of The New York Times, I don't drive to a drugstore or newsstand or library to purchase or peruse a copy of the print edition of that newspaper. Instead I go to and click on the link for "Today's Paper," which will bring me directly to a list of every article appearing in multiple editions of today's newspaper, with full online access to their content. (1)

Now that we can access nearly the full contents of pretty much any newspaper in the world on our cell phones, the number of people who continue to purchase or subscribe to home delivery of an actual print copy of a newspaper continues its steady decline. Indeed, not only has online largely replaced paper when it comes to accessing the contents of newspapers. but popular apps such as Facebook and Twitter tend to be the way in which large numbers of people learn what is happening, instead of directly visiting a newspaper's web site.

The consequences of the digitalization of news coverage are many. Across the nation over the past decade or so, some major newspapers have closed down (see Denver's Rocky Mountain News (2) ) or abandoned print for online-only coverage (sec The Seattle Post-Intelligencer (3) and The Ann Arbor News (4) ). Numerous other newspapers--such as The Birmingham News (5) in Alabama, The Plain Dealer in Cleveland, (6) The Harrisburg Patriot-News (7) here in Pennsylvania, and The New Orleans Times-Picayune (8)--have managed to remain alive by decreasing the number of days per week on which they publish print editions. The loss of classified advertising to free online alternatives, such as Craigslist, and the loss of print readers, resulting in a loss of traditional advertisers who have flocked to follow digital-edition readers to online options, have posed tremendous financial challenges to the continued existence of even the largest and most successful newspapers in the United States. The newspapers that have managed to survive have engaged in large staff cuts reducing the number of reporters and editors, and often the most experienced reporters and editors have been at greatest risk of losing their jobs because their salaries and benefits are so much greater (and thus costlier to the employer) than those of the brand-new reporters and editors who replace them. (9) These and the many other consequences of the digitalization of news coverage of course extend to the manner in which the news media cover appellate-court rulings.

The decline in traditional newspaper coverage of appellate courts, and of civics topics in general, is difficult to measure empirically, but it seems to be an unavoidable consequence of declines in newspaper readership and newspaper coverage of local government entities, including state and federal courts, as a result of the disappearance in many areas of reporters primarily assigned to cover the business of the courts for general-interest newspapers. (10)

Despite the gloomy economic reality for newspapers and the unlikelihood of any turnaround in that regard, at present a substantial number of experienced journalists who regularly cover the courts continue to ply their trade. Although space limitations prevent me from listing all who deserve to be mentioned here, I must include Bob Egelko of The San Francisco Chronicle, (11) Maura Dolan of The Los Angeles Times, (12) Bill Rankin of The Atlanta Journal-Constitution, (13) Chuck Lindell of The Austin American-Statesman, (14) Kent Faulk of The Birmingham News, (15) and Jim Provancc of The Toledo Blade. (16)

All of these newspaper reporters, and various others like them, regularly cover the rulings of the federal and state appellate courts in the places where their newspapers are located. And even though, thanks to the internet, their news coverage of those courts is now more widely available online than perhaps ever before, declining newspaper circulation and readership have unquestionably curtailed the number of local readers who are consuming that coverage.

Of course, some exceptions exist to the overall trend of declining newspaper coverage of local courts. For example, The Washington Post has recently assigned experienced journalist Ann Marimow to cover the D.C. Circuit, the Fourth Circuit, and the state-level appellate courts of Virginia and the District of Columbia. (17) And Zoe Tillman, who covered appellate courts for The National Law Journal--a publication whose contents largely exist beyond a subscription-only paywall--recently began covering appellate courts nationwide for BuzzFeed, an online-only news publisher whose content is freely available to all. (18)

Moreover, thanks to Twitter, news of newly issued federal appellate court decisions is often disseminated earlier than ever, often as promptly as the attorneys in a case will be advised of the rulings, and even before the opinions become publicly available on the courts' own sites. (19) Journalists can register for alerts from a federal appellate court's electronic filing system to be notified of new filings, including the court's filing of particular opinions, just as quickly as the lawyers in a case will be notified. Journalists such as Tillman, (20) along with Brad Heath of USA Today (21) and Mike Scarcella of The National Law Journal (22) frequently tweet out news and links to new appellate-court rulings before anyone else has done so.

At the same time that technology has resulted in a decrease in newspaper coverage of appellate-court rulings, the internet has made access to those rulings and to appellate oral arguments more freely available than ever before. Every federal appellate court and state appellate court makes its published opinions freely accessible online. Nearly all federal appellate courts, and many state appellate courts, also make oral-argument audio freely available online. The Ninth Circuit livestreams its oral arguments on YouTube, (23) and some state appellate courts also provide live and archived online access to oral-argument recordings. (24)

Hundreds of thousands--if not millions--of interested people watched online and on television in February 2017 when the Ninth Circuit livestreamed its first oral argument concerning President Trump's so-called travel ban. (25) And despite the tremendous interest in the subject matter of the travel-ban oral argument, it may have been one of the least visually interesting oral arguments of all times, with the attorneys participating remotely by telephone and the judges themselves also participating from off-camera locations. (26)

Appellate judges and lawyers with the talent and time to write opinions...

To continue reading