The communication of law in the digital environment: Stability and change within the concept of precedent.

摘要

Faced with the increasing population of judicial decisions in the 1970s the federal appellate courts adopted no publication and no citation rules. The rules were an attempt to control the amount of case information in the legal system. Case populations have expanded since. Placing unpublished precedent online in databases such as Westlaw and LEXIS, and placing other published precedent online creates an environment in which more law is available and available at an earlier date to researchers than would otherwise be available in traditional print settings. Researchers such as M. Ethan Katsh and Susan W. Brenner suggest that this increased availability is contributing to a crisis in law known as precedent erosion or inflation whereby the value of existing law is undermined. This Study presents the results of several empirical experiments attempting to define the nature and validity of the precedent inflation or erosion claim. First, population regression modeling of the United States Courts of Appeals LEXIS online case Files suggests that the unpublished precedent growth curves are actually linear or s-shaped rather than exponential as a precedent inflation or "litigation explosion" claim would suggest, and may be contributing to an over all s-shaped case population growth in the various circuits. In addition, the percentage of unpublished versus published cases has stabilized in most circuits in recent years. Second, a citation analysis of unpublished precedent use indicates that very little unpublished precedent is actually cited in the United States Courts of Appeals. Further, there is an indication that the citation system is also breaking down, with incomplete or partial citations used to identify unpublished precedent. A final segment identified, by document, the occurrence of electronic citation formats versus the occurrence of print citation formats of the same information. Although use of electronic sources of cases is very small (as evidenced by its citation) it is nonetheless slowly increasing, while use of recent print precedent (slip opinions) is decreasing. Also, the use is greater among scholars and lawyers than among judges, and less in Supreme Court cases than other levels of the federal judiciary.