Law.com has just reported that the U.S. Supreme Court "adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year". Apparently, unpublished opinions represent 80 percent of cases decided in the federal appeals courts.
It seems to me that recent rulings of the courts (Canadian and American) may be the start of a re-evaluation of the legal research process. The Ontario Court decision discussed in the April 10 post "Computers Have All the Answers".- looks as though it will be impetus for some lively debates amongst practicing lawyers (I think the Toronto Research Lawyers will be discussing the case at their April meeting).
As noted in the comment to the April 10 post, one must separate "research" from "analysis".. Twenty five years ago, I recall spending most of my time "researching" because the finding tools were not that helpful. Once the "research" was finished, there tended to be a manageable amount of material, usually well written, to digest and analyze. Today, I think the "research" time has been shortened – but the analysis time lengthened because there is so much more material to consider and the material is often unorganized and confusing. From a client's perspective, I think the legal bills are higher than ever.
What interests me is that the U.S. court decision is unlikely to have any real impact on the state of the law (though it may cause lawyers headaches in having to screen the large mass of cases), given the fact that the vast majority of cases are never cited more than a very few times — DNA lines, as it were, that die out as "unfit." [See Michael Lines' post on The Web of Law] I wonder if such evidence could ever make a difference to a court's view of appropriate precedent.
Okay, Elizabeth. The foundation for the movement is a constitutional one which embraced Judge Arnold's reasoning in Abramoff v. US.
It's worth quoting the opinion:
The gossipy element is that it was Judge Alito who chaired the committee that recommended the changeSee at page 30 for the text of the Rule and its rationale., and who now as Justice Alito is a member of the group that approved the change
Also some useful commentary from the blogosphere by Howard J. BashmanTo Cite or Not to Cite to Non-Precedential Opinions
Canada has never had any such similar ban on citing unpublished decisions.
Given the tendency among law students and younger lawyers to hold the unshakable belief that electronic research is ultimately faster, I was pleased to see Elizabeth's remarks as what you gain in speed at the research end, you may lose at the analysis end. When the major law firms in Toronto first started using Quicklaw in 1979, law librarians were thrilled that we would have access to all of those unreported cases that were so difficult for us to find because we had to rely on what was on hand or in storage at the courts. Over time, however, the number of unreported –e.g., not printed in a hard copy law report — cases has grown exponentially. Today, as Elizabeth points out, you may find hundreds of cases that use your keywords, but there is no guidance as to which cases are significant, set new tests, etc. and which just apply the law. You have to read (or at least skim) them all — and bill for that time. During our orientations, I always remind the students that law firms are businesses and that we compete not only in the courtroom, but for clients as well. It is important to use the resources that will get you to the right answer in the most reasonable amount of time to keep costs down and therefore, clients happy.
An interactive map of the case law network might help in this respect. One could look up a case and see how much of a "node" it is, compared with others in the subject-locality. Citations between decisions, being expert-generated, are a high quality 2.0-style indicator of quality…
Michael, your suggestion interests me a lot. Is there software that you're aware of that would produce the interactive features you're thinking of? I agree it'd have to be a "map" of the subject locality, rather than, say, a map with a SCC case at its centre. If you happen to have a visual of the sort of thing you suggest, I'd love to have a look.
Sorry not to reply sooner. I have no idea whatmight produce such a map. I'm thinking of various interactive maps I've seen on the internet, where clicking or 'pulling' on a node expands it, or moves it into a position for better viewing….