What's Weirder than an Unpublished Order?
Here's a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?
A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day. We weren't having much luck--we couldn't find it on Virginia Lawyer's Weekly, the SCOVA blog, or Steve Emmert's website.
That sparked a discussion about the utility of issuing unpublished orders in the first place. I tend to believe that, if a case is worthy of SCV review, then it is worthy of a published opinion that counts as precedent--particularly when the Court needs more than a page to explain its reasoning, or when it decides a case over a dissent.
But I've never been a judge, and I haven't spent much time thinking about the issue, so I could be persuaded otherwise.
What struck me the other day was, why publish opinions in hard copy at all?
It's incredibly weird that we still go through the ritual of publishing opinions in case reporters, as if people still used books to find cases. Relatively few people have access to the Virginia Reports. Practically everybody has access to the internet, and professionals these days use LEXIS, Westlaw and (increasingly) google scholar.
To wit: look at the chump in th
is picture. He's reading law books, and taking notes with a pen in a spiral bound notebook. Who does that?
Nobody, that's who.
Wouldn't it be cheaper and easier to finalize opinions and then post them on the Web, with some sort of generic citation? For old times sake, we could keep with volume numbers in the citation, or we could just do something like "2012 Va. 1."
Peter Martin recently wrote a thought-provoking piece on Arkansas' efforts to do just that. Peter W. Martin, Abandoning Law Reports for Official Digital Case Law, 12 J. App. Prac. & Process 25 (2011).
And when I say "thought-provoking," I mean that literally; it was Martin's hard work that got me thinking about these issues in the first place, and I don't make any claim to remotely original thought in this post--Arkansas has already put this into effect, for God's sake.
At any rate, Martin's article is thorough and well worth your time.
Right now, the SCV puts slip opinions up on the web. That is extraordinarily helpful and--from what I can tell--greatly appreciated by the bar. Imagine how easy it would be if the official "published" opinion followed shortly thereafter, on the web and freely available to all, in one central and easily searchable place?
Jay, you make at least two good points in this post, IMO.
First, the published/unpublished distinction doesn't make sense to very many people outside judges' chambers. I think every lawyer doing litigation has likely had the occasion to want to cite an unpublished opinion, and LEXIS and Westlaw have rendered the traditional published/non-published practical distinction obsolete. I agree with you -- if a case was important enough for an appeal to be decided, it's important enough not to have the official disposition snubbed.
Second, courts should be encouraged to self-publish all of their opinions and orders, without regard to published and unpublished. The Supreme Court of the United States is an excellent example.
As to making up a new form of citation, I tend to think we need that like a hole in the head, but if that's what it took to get properly cite-able opinions directly available for free, I'd say yes. Certain other states already do that -- see, e.g., Oklahoma's public domain citation format in your Bluebook. (If Virginia's appellate courts hold all necessary IP rights in the Virginia reporters, they may not need to create a new citation format. I get the sense that some other states relied on West regional reporters entirely and so were not in a position to be citation self-sufficient.)
Thanks, Josh. I hear you about the idea of a new citation form.
I think that you are right about other states ceding to commercial reporters; according to Martin, Virginia is one of only 12 states in which a public reporter still performs "the full range of functions traditionally associated with official case law publication."
Look no further than neighboring Maryland for a great example:
http://www.courts.state.md.us/opinions.html
All published opinions of our intermediate (Court fo Special Appeals) and highest (Court of Appeals) appellate courts are published on the web the day they come out. Of course, they still go in the paper reporters and are cited the same way, but at least they are all publicly available.
Also, our Court of Appeals does not have unpublished opinions or orders.