Here’s a question: Is it stranger that the Supreme Court of Virginia decides some cases by unpublished order, or that it publishes any opinions at all?

A colleague and I were recently trying to track down a recent unpublished order from the SCV the other day.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That sparked a discussion about the utility of issuing unpublished orders in the first place.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 this 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?