The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

The latest issue of the New York Law School Law Review just crossed my desk, with many interesting articles,  including this one by William R. Mills, associate librarian and professor of Legal Research:

New York Law School Law Review

Volume 53 2008/09

William R. Mills

The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age

Professor Mills’s conclusion:

The foundation of trust that underpins our system of case law reporting has now been undermined. Cases posted to many mainstream Internet legal research sources, other than Lexis or Westlaw, appear with no strong guarantee of accuracy or authenticity. Scrupulous legal researchers who wish to independently verify the accuracy of the case reports they cite from Internet sources are met with the burden of comparing the electronic reports against print versions, which are the only ones that courts deem to be official. On a large scale, this burden can prove insurmountable. Furthermore, readers of modern legal literature, when encountering citations from the National Reporter System, have good reason to harbor doubt that the authors who wrote those citations actually consulted the editions that they cited. Moreover, if the authors did not actually consult the National Reporter System, or its established electronic counterparts Lexis or Westlaw, then there is no assurance that the sources they did consult were reliably accurate.

In the digital age, the foundation of trust in our case law reporting system, and in legal citation generally, must be rebuilt. Such a rebuilding effort cannot succeed by utilizing the technology of printed books. Today’s legal researchers are increasingly abandoning print sources in favor of their Internet-based counterparts. The rebuilding of trust in the case reporting system must take place in the realm of digital technology. It must focus on implementing digital safeguards within the process of dissemination of case law databases to better ensure the accuracy and security of information found in those databases.

While court systems and other government entities will obviously play major roles in this rebuilding effort, the legal profession would be naive to expect the government alone to accomplish this work. The government, after all, has never succeeded in creating an efficient case reporting system that served the needs of lawyers nationwide.  Rather, the rebuilding of the American case reporting system for the digital age must be an effort undertaken jointly by government, professional groups, and private enterprise.  The corporate proprietors of Westlaw and Lexis, as the inheritors of the West paradigm, ought not to resist this effort, but instead join in to facilitate its speedy success. Cooperation among all parties is essential, and private enterprise would be an ultimate beneficiary. The companies that market databases of case reports to lawyers have nothing to lose and much to gain from an improved system that bolsters the trustworthiness of these products.

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