Publishing the Law For Posterity #LVI2012

One of my favorite talks at the Law Via the Internet Conference turned out to be from Frank Wagner, retired U.S. Supreme Court Reporter of Decisions. His topic, Reporting the Law in Perennial Time dealt with the difficulties involved in publishing documents that need to be accurate and authentic and accessible for centuries.

Digital data’s inherent impermanence

The things that make digital data great also make it difficult to use for archiving information. Standards and formats change fairly quickly, but Supreme Court opinions must be archives for the ages.

Wagner was nervous about state supreme courts who publish digital versions of their decisions as the official version. He approves of the sentiment, but doesn’t think those courts have fully thought through the problem. What will they do when formats change? Are they protected from hackers? Do they have a plan to preserve URLs in the event that they change content management systems? And so on.

That’s why the official version of Supreme Court opinions is still the printed volumes. Paper, for all its problems, doesn’t sprout typos or copying artifacts the way text and images tend to do when moved from one place or format to another. Digital data can degrade or even disappear. (Wagner said he had a file just for documenting errors in Supreme Court decisions as reported by Westlaw and LexisNexis.)

Other problems

Other problems crop up, too. Consider the problem of the websites that are now often linked from opinions. Wagner described one case where a website that contained a policy effectively overruled by the Court’s decision was taken down within minutes of the publication of the opinion. Because of situations like this, the reporter now archives websites linked to from Court opinions — on paper in the case file, which is usually sent to the National Archives once the case is closed.

Moving to digital publication

Wagner says there are real, unsolved problems with creating lasting digital case reports, and he doesn’t think the marketplace will provide a solution. He didn’t say so, but I think he expects the Supreme Court to develop its own solution, at some point. Although I think it is also possible that the Supreme Court comes up with a hybrid solution where paper continues to be the official version, but the Court commits to maintaining a second, official digital version.


  • The Supreme Court has its own style rules. The pronoun we, for example, is reserved for the majority opinion. Dissenters may not use it.
  • Wagner says the plural of syllabus ought to be syllabuses. He says that once a word makes the transition to English, it should take an English plural.
  • The reporter writes the syllabuses with input from the Court. Different opinion writers prefer varying degrees of length and comprehensiveness in their syllabuses. Justice Ginsburg, for example, likes a longer syllabus because she believes most people won’t read anything else. Data from Cornell’s LII bears her out on this point.

1 Comment

  1. Avatar Sean McGrath says:

    Great to see this subject getting attention. It is a problem that must be tackled before the legal world can truly go all-electronic for legal materials.
    My 4 cents:

    “no such thing as an ‘original copy’ in the electronic world” and


    “Authenticity and the Law” ”

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