Statement of the Facts
Having recognized the importance of the questions presented section of a legal brief, this post moves on to discuss the indispensability of the statement of the facts. Whether one properly presents the facts without argument or such a statement necessarily is implicitly argumentative, the value for purposes of deliberation and resolution is undisputed. In short, we need to develop a commonly held, rich and thorough set of facts for each question we approach. In discussion as in litigation, there are diminishing returns to fact-gathering (“discovery,” in the litigation context), of course, so our focus in this regard may be better centered on accessibility. Presentation of every possible fact and informational detail bearing on discussion may not be the best use of our resources. See supra (discussing resource limitations). What is important is that all are playing with the same deck of cards: accessibility is key, and informational asymmetries will lead to deliberative breakdowns and unsatisfactory resolutions.
Earlier this month, Google announced that it will enable searching and full-text reading of legal opinions from “U.S. federal and state district, appellate, and supreme courts” through its Google Scholar service. Many readers may be surprised that an announcement like this would receive special attention. Why is it a big deal that court opinions are being offered publicly at no cost? Aren’t they available already? To answer these questions and consider the effect of Google’s new endeavor, a short, unauthoritative history of legal reporting follows.
In the early days of the United States Supreme Court, the Court did not publish its own opinions. They were available to attorneys only through the efforts of private court reporters. These reporters were individual men who, I assume, sat in court on the days the justices announced their decisions and made handwritten notes. Citations to early cases bear the names of these men: Dall. (for Dallas), Cranch, Wheat. (for Wheaton), Howard, Black, Wall. (for Wallace), and so on. There are a few noteworthy points regarding these early reporters. First, they did not publish opinions for every decision of the Court. This means that these individuals controlled the precedental material available to attorneys and litigants of the day (who, presumably, did not have the time to sit in court every day of the Term and take notes themselves), because they decided which decisions were worthy of publication. Second, the reports were interpretations of the orally delivered opinions of the justices. Lacking modern recording technology, these early scribes did the best they could in getting out the gist of the decisions. [Note: I don’t know how true this second point is, but it seems plausible, and, if nothing else, they probably had trouble reading some of the justices’ longhand if they were privy to it.] Third, and more accurately, anyone wanting a copy of these early reports had to pay for them– the Court did not fund these reporters. These three points all presented limitations on the accessibility of information.
Fast forward an indeterminate number of years. The Supreme Court now has its own reporter (still notated “S.Ct.”) for all of its decisions, published as written. I don’t know if these were free, but it doesn’t matter, because no one ever used them. They came out so infrequently as to be unhelpful for attorneys and litigants operating in an increasingly fast-paced world. At some point, the West organization (based out of Minnesota, as I recall from a contracts case about intoxication) stepped in and initiated the early modern era of judicial case reporting. Eventually the West company (which became Thomson West, and now Thomson Reuters) published hardbound volumes of opinions from most levels of state and federal courts.
Fast forward a touch more, and we’re into the Internet Age. West and another private, fee-supported company, LexisNexis, have digitized the decisions, along with a host of other primary and secondary legal sources, and they dominate the market today. These two electronic sources (West’s is known as WestLaw) are the most complete, versatile, and otherwise accessible sources of public legal information. The catch is that access to these large databases carries a large price tag that is prohibitively expensive for many litigants and their attorneys.
Undoubtedly, the new Google Scholar initiative is an attack on the dominance of WestLaw and LexisNexis. The free service does not appear to cover state and national statutory law, international materials, and secondary sources like treatises and law journals. But it is access to the decisions themselves that is most immediately important to practitioners and parties. Only insufficient searching and indexing tools (particularly a citation-tracking tool like Shepardizing or KeyCiting) will prevent an exodus from the private, pay services.
Google’s Books project has drawn criticism and concern from many quarters, see here, here, and here, but many of these critiques may not apply to this new project, which will offer only public information. Surely the offering of public information at no charge cannot be cause for concern; indeed, Google cites the support of legal accessibility “pioneers” like Tom Bruce of Cornell LII, Tim Stanley of Justia, and Tim Wu of AltLaw. Some of the accessibility concerns present in the previous periods of court reporting may apply to the new Google service, however, namely those stemming from private control of public information.
Although ability to pay is not a barrier to information, there is no reason to think that the other accessibility obstacles will not apply to Google’s service. Mitigating these obstacles is the fact that court reportage is no longer exclusive: Google is one among a (slowly growing) number of possibly competing choices. Perhaps it isn’t so strange that private entities would primarily be engaged in the management and distribution of public information. After all, governments outsource to and contract with private entities for many of the public goods and services they provide. Why shouldn’t they do the same thing with public information? Or is there any basis to the conspiracy theory-esque worry about increasing reliance on and willingness to trust private organizations like Google with all of our public and private information and data? And if there is, are we willing to bear the cost of managing collective information collectively?
It may be true that we are drowning in information and starved for knowledge. It probably also is true that, to paraphrase Arthur C. Clarke, information is not knowledge, knowledge is not wisdom, and wisdom is not foresight, but each grows out of the other, and we need them all.