February 9, 2011
Reinvigorating Public Responsibility for Publication of Official Court Opinions in the 21st Century
In Abandoning Law Reports for Official Digital Case Law [SSRN], Peter W. Martin, Jane M.G. Foster Professor of Law, Emeritus, Cornell Law School and cofounder of the Legal Information Institute, reviews how Arkansas replaced official print publication of state court opinions in 2009 with a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions.” The article also reviews the abdication of public responsibility for publication of official court opinions by some states (not Arkansas) to West's regional reporters because state reports simply could not compete. Martin writes
This article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and its reporter’s official database from the opinion archives hosted at the judicial websites of most U.S. appellate courts (including that of the Arkansas judicial branch between 1996 and 2009). The article next explores the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. That requires focusing on the importance of the reporter’s role in this shift from print to digital case law publication and leads to speculation about which other states have the capability and incentive to follow Arkansas’s lead. That, in turn, necessitates a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.
Martin's article documents Arkansas' reform as a landmark event and rightly so. It is a turning point facitated in part because the State never abdicated public responsibility for publishing official court opinions to West. The administrative publishing infrastructure was in place. Martin observes
While Arkansas’s reform in case law publication remains a work in progress, it is one that should command respect and close attention from other jurisdictions. In implementing this bold initiative in electronic case law dissemination and storage that state’s judicial branch is constructing a model that should inform the plans of all judiciaries that will, sooner or later, be persuaded or forced to venture down this same path.
Arkansas was the first jurisdiction in the nation to switch from print publication to official, authenticated, comprehensive electronic publication of court opinions. Quoting again from Martin, "[i]t will not be the last."
Hat tip to Paul Lomio for calling attention to Martin's article on Legal Research Plus. It made for a very interesting enlightening read last weekend. Hopefully, some ALR instructors will assign the article to their students. [JH]