Current Technology Makes Non-Publication Unnecessary
The arguments in favor of limited publication were premised on legal
storage and research as it existed on the printed page.
When limited publication plans were adopted, unpublished opinions
were essentially banished from public existence since the bound volumes
were the sole source of case law. But technological advances have
changed this reality: in jurisdictions that allow for public
distribution of unpublished opinions, online research services make
these decisions widely available. Despite an opinion's unpublished
status, public access is indeed possible.
Questions of cost, fairness, access, and efficiency were all
fundamentally linked to a paper-based publishing regime.
Today, the information contained in thousands of volumes in a library
can be stored in a single file cabinet.
The cost savings from the resultant need for less physical space can
be dramatic -- especially in the high rent office space in which many
law firms are located.
The physical storage and maintenance costs of electronic media are
much less than paper volumes.
Most publication costs are borne by the members of the bar, not the
state. Since law firms and lawyers purchase a majority of volumes of
reported opinions, the legal community and not the state pays most
The nature of legal research has already changed: the use of manual
research has declined. A researcher today can sift instantly through a
sea of case law, retrieving or Shepardizing a relevant case in a matter
The spread of computer-based research does not threaten the access to
relevant law: Despite problems with free-text searches, especially
within the narrow parameters of LEXIS and WESTLAW, finding "one
good case" is usually sufficient to connect with relevant cases and
A greater number of opinions published on a particular topic of law
does not necessarily mean that confusion and contradictory decisions
will result. A string of decisions usually reaches similar results, if
precedents, published and unpublished, are available. Conversely, the
refusal to publish decisions means that contradictory results are
inevitable, turning the courts into casinos and undermining the very
nature of the law.
Computer-based research tools level the playing field. Even if access
is not equal, more law benefits those with scarce resources. Without
clear circuit precedent on point, an advocate must guess at the law --
by drawing analogies or extending dicta, by researching the law of other
jurisdictions, or by reading treatises and law abuse. That is an
expensive task, especially when compared to looking up to existing
pieces of black-letter law.
That many decisions reinforce prior holdings does not mean that more
recent holdings should not be published. Recent holdings reveal the
continuing strength of legal doctrine and illuminate whether it has been
consistently upheld in varied factual circumstances. This is especially
relevant in a rapidly changing world.