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Which Version of Dred Scott, Plessy, or Bush v. Gore Do You Want?: U.S. Supreme Court Rewrites (ur, edits) Past Opinions

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When you rely on a judicial opinion to support your cause, which version of the case do you carry into court? This is the 21st century law librarian and bench-bar dilemma.

Even if you solve the authenticity and and copyright problems (and we’re nowhere near doing that), what are we going to do about the Supreme Court?

See, Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” by Adam Liptak, May 24, 2014 (re the upcoming article, The (Non)Finality of Supreme Court Opinions,” by Richard J. Lazarus, 128 HARV. L. REV. ___ (forthcoming 2014)).

See also, Victor Li article, “Who owns the law? Technology reignites the war over just how public documents should be,” ABA Journal, June 1, 2014

From my perspective as a public law librarian: We know far less about the provenance and authenticity of online public domain statutes and cases than we know about the provenance and authenticity of a Bitcoin or a painting on sale at Sotheby’s. (And now it appears that we might know even less than we thought about U.S. Supreme Court cases published in the (formerly?) official U.S. Reports. I’d hold on to those hard bound volumes if I were you. It might be the only way to find out if an opinion has been rewritten.)

There are courts and legislatures that just want to make law; they do precious little to budget for preservation and authentication, or make the laws searchable, without which “accessibility” is an illusion. (Posting the equivalent of slip opinions and slip laws on websites is not “access to justice” or “access to the law” or “access to the courts.”)  And feeling the wonder and “magic” of the internet, without more, should not put one in thrall to those who proclaim their internet expert and arbiter status. Remember the Emperor’s New Clothes?

There are self-represented litigants (and others without expert legal research skills, e.g. legislators, journalists, teachers, students, etc.) who don’t know how to distinguish actual, official, and relevant law from all the “law-like” crap online. Other than the public law librarians, civics teachers and their partners, and the dedicated Civil Gideon providers (legal aid, pro bono, etc.) who try to teach responsible and effective legal research there is no concerted effort to teach self-represented litigants how to do the legal research equivalent of “safe online shopping.” And do these self-represented litigants stand a chance against a Supreme Court and a Congress (let’s not forget the “editing” of the Congressional Record) that have no scruples when it comes to rewriting history? But then the victor has always been able to rewrite history; are the victorious internet hackers, public and private ones, carrying on the tradition?

Excerpt from: “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” by Adam Liptak, May 24, 2014: “WASHINGTON — The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced….” [Link to full article.]

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One response to “Which Version of Dred Scott, Plessy, or Bush v. Gore Do You Want?: U.S. Supreme Court Rewrites (ur, edits) Past Opinions”

  1. randtke says:

    “And now it appears that we might know even less than we thought about U.S. Supreme Court cases published in the (formerly?) official U.S. Reports. I’d hold on to those hard bound volumes if I were you. It might be the only way to find out if an opinion has been rewritten.”

    Hmmmm…. I think the slip opinions each have a note in the front that they are subject to change. This law review article and news coverage is talking about changes between the bench opinions, then slip opinions, then preliminary prints, then final opinions.

    From the NYT article: “There are four generations of opinions, and only the last is said to be final. So-called bench opinions, in booklet form, are available at the court when decisions are announced. Slip opinions are posted on the court’s website soon after. They are followed by preliminary softcover prints and then by the only official versions, which are published in hardcover volumes called United States Reports. The official versions of opinions from 2008 were published in 2013.”

    Once the official version comes out in hard cover, there isn’t editing anymore (or at least, if there is, it is so rare that it’s not a huge fairness issue and not the meat of the article).

    Anyway, this is a good time to plug something like Win Merge for finding and highlighting differences between two texts. It’s not yet automatic for us to detect where something was changed, but there are tools you can use to help spot the differences quickly.

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