May 23, 2007
Professional Reading: From Legal Reasoning to Close Reading: The Textualization of Precedent
Check out Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L. Rev. 1187 (2007) [Westlaw]. Here are some excerpts from the introduction of this very interesting article:
In the United States ... the common law is embarking on a path towards becoming increasingly textual, just as statutes have been for hundreds of years. It is no exaggeration to say that in this country, the common law consists of what judges write in their opinions. What they think or what they say during the proceedings before them is almost entirely irrelevant. As a result, it is less and less necessary to search for the holding or ratio decidendi of a case; the judge writing for the majority will often specify exactly what the holding is in carefully crafted text that is meant to fetter the discretion of lower courts in the same way that a statute does. As a consequence, legal reasoning is gradually being supplanted by close reading.
[American Courts are beginning to treat the common law as legislation.] Minds will differ on whether this transformation is good or bad. There are many consequences that flow from writing down the law in an authoritative way, something that I call textualization. One of the most significant consequences is that the law becomes more transparent and less susceptible to subtle manipulation. The other side of the coin, of course, is that it becomes more rigid. Rules that reside in memory tend to be more conceptual. They can evolve--consciously or not--as circumstances change. Textualized law, on the other hand, places greater interpretive constraints on those who apply it, and it can usually be changed only by formal amendment or overruling, which can be a slow and cumbersome process.
Complicating the picture is that as the common law becomes ever more textual, the very notion of written text is undergoing dramatic and largely unpredictable changes. Paper is being replaced by pixels. Even though a computer display can mimic a text on paper, there are significant differences between them. Accessing a large corpus of written or printed information traditionally requires an index or digest of some sort, which means that a human being must categorize the content in some way. Accessing electronic text, on the other hand, typically involves requesting a machine to locate sequences of text that exactly match a search term. Moreover, publication, once an important emblem of the authority of a judicial opinion, is undergoing profound transformations in a culture where anyone can publish whatever he wants on the Internet. It seems likely that these developments, especially the massive increase in available cases and the ease with which they can be accessed online, will only intensify the shift from legal reasoning to close reading.
There is no doubt that the common law and the nature of precedent have undergone dramatic changes during the past century or two, especially in the United States. What will ultimately result from these developments remains to be seen. It is clear, however, that American judicial opinions are far more textual than opinions or judgments made in the past. It seems inevitable that this trend will have important implications for the concept of precedent and the nature of common law adjudication.
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