Freedom Paper No. 7
CREATING AND DISSEMINATING LAW IN A DEMOCRATIC SOCIETY
By Bruce Kennedy
The rule of law--and the unfettered dissemination of legal information--are essential to the functioning of democratic society. This paper discusses the history and basic structure of democratic legal systems and explains how modern technology is making the dissemination of legal information more efficient and widespread.
Initially, this essay introduces and explains two legal traditions--the Civil Law Tradition and the Common Law Tradition--which are ancestral to most modern legal systems. It then discusses the legislative and judicial processes that enforce old law and create new law in democratic societies. Finally, it explores how law is published and how nations can improve their legal information infrastructures by using modern information technologies.
Democratic Legal Traditions
Most modern legal systems can trace their ancestry back to either the Civil Law Tradition or the Common Law Tradition, traditions reflecting different legal philosophies and cultural approaches to law. Understanding these traditions is basic to understanding the differences that exist among national legal systems and appreciating the difficulties inherent in creating a universal concept of law.
The Civil Law Tradition employs a legal code created by a legislature as its primary vehicle of law and de-emphasizes the importance of judicial case law, while Common Law Tradition uses judicial precedent to build a network of rules of law that is also supplemented by legislation.
The Civil Law Tradition--also called the Roman-Germanic legal tradition--traces its origins back to a body of Roman law compiled during the reign of the Emperor Justinian. Over a span of six centuries, this Roman law was elaborated upon and enriched by successive "schools" of scholars working in medieval European universities. During the 14th century, a school of thought arose that attempted to recast all this medieval scholastic law into rational principles mirroring the emerging "laws" of science. Implicitly, scholars of that era sought to define a just society based on the "natural rights" of man within the rubric of law.
This legal tradition laid the foundation for the codification movement of the 19th century, when several European nations restructured their laws into legal codes. Three great codes--the civil codes of France (1804), Germany (1896), and Switzerland (1881-1907)--inspired many codes within Europe. The legal codification of that day was also widely exported to Latin America, Africa, and Asia, an expansion that occurred partly through European colonialism and partly through voluntary reception by newborn nations.
Today, the legal "code" remains the central unit of law in civil-law jurisdictions. Essentially, a code is a single statute that sets forth a systematic statement of fundamental legal principles for an entire field of law. Civil law, civil procedure, criminal law, and criminal procedure are the classic code topics. However, codes have been written for less sweeping subjects such as taxation, mining, and motor vehicle law.
Unfortunately, the term "code" has several meanings. In many common-law jurisdictions, statutes are published as codes, but most of these are not true codes; they are compilations of preexisting statutes as opposed to a single, organic code. As compilations of narrowly framed statutes, these codes do not have the breadth and systematic structure of a civil-law code.
As fundamental law, a legal code tends to be the most durable component of a civil-law system. Naturally, it has to be able to evolve in order to be responsive to novel legal problems. Thus, most civil-law jurisdictions permit their codes to be amended by subsequent statute.
Judicial interpretation of any legal code is necessary to apply it to actual disputes. In a civil-law jurisdiction, judicial decisions are unquestionably binding on the parties to an original dispute, but they have little or no authority as precedent in future cases. Theoretically, each court is expected to begin its decision-making process with fresh reference to the code rather than by examining prior case law. Practically, however, in many civil-law jurisdictions, the opinions from high courts do enjoy persuasive authority before lower courts.
The path of the Common Law Tradition is quite different. Unlike the Civil Law Tradition, which grew from rich scholarly exegesis, the Common Law Tradition comes from the practical, positive law of medieval England. It began as an amalgam of customs, rights, principles, and practices common throughout the English realm that were articulated in decisions rendered by the King's judges. As royal power grew, so did the jurisdiction of the King's courts, and by the 15th century a single concept of English common law had displaced a hodgepodge of local laws administered in feudal courts.
Unfortunately, the common law hardened into a series of arcane, rigid procedures--called "forms of action"--that did not provide relief for many legal problems. Slowly, and with much friction, a parallel judicial system--known as "equity"--developed within the office of the King's Chancellor. These Chancery courts granted relief against injustice when no adequate remedy was available from the common-law courts. Eventually, even the equity courts ossified, and by the 19th century, the English Parliament saw fit to enact sweeping reforms that reorganized the courts, modernized the common law by abolishing forms of action, and fused the equity and common-law courts into a single judicial system. This history would be insignificant if the Common Law Tradition had been confined to England. However, as the British Empire spread, the Common Law Tradition was transplanted to parts of Africa, Asia, Australia, and North America, and so became, and remains to this day, a significant element of legal culture on many continents.
Essentially, then, the common law is a web of law spun from rules framed in judicial decisions. Its growth depends on the notions of "precedent" and "stare decisis." Precedent is the general concept that a judge should look to prior judicial decisions for a rule of law that can be applied to determine the outcome of a pending case. The concept comes from a time when judges saw the common law as the "law of the land" and the prior opinions of learned judges as very good evidence of the true nature of that sometimes rather nebulous common law.
The Doctrine of Stare Decisis
By the middle of the 19th century, the doctrine of stare decisis--the use of binding precedent--had evolved. Under the doctrine of stare decisis (which is Latin for "to abide by decided cases"), a rule of law framed in one case under common law will serve as binding authority to resolve future cases that are the same or analogous.
Stare decisis operates in the context of a hierarchy of courts in a jurisdiction. Rules of law framed by high courts are binding on the lower courts of the jurisdiction. Rulings by divisional courts that have co-equal status are mutually regarded as persuasive authority.
Precedents may also have extra-jurisdictional influence in a common-law society. Decisions from other common-law jurisdictions may be accepted as persuasive authority by a court wrestling with a novel legal issue. So in the United States, if a court in the state of Florida is confronted by a novel issue (governed by no existing case law or legislation), the court may look at case law from the state of South Carolina for guidance in framing a new rule of law.
The doctrine of stare decisis has four important qualifications:
Statutes in Common Law
If case law holds a dominant position in common-law jurisdictions, what weight is given to statutes? According to formal theory, statutes are "the addenda and errata of the Book of the Common Law." As the British legal scholar William Geldart explains in the 8th edition of Elements of English Law: "...If all of the statutes of the realm were repealed, we should still have a system of law, though it may be an unworkable one; if we could imagine the Common Law swept away and the Statute Law preserved, we should have only disjointed rules torn away from their context, and no provision at all for many of the most important relations of life."
These words, written in 1975, are less true now, at least in the United States, where vast amounts of new legislation now govern many legal questions. Yet as statutes grow in importance, the courts continue to play a critical role in law-making and in the interpretation of precedent. Not only are judges in the United States charged with the task of interpreting statutes; they are also empowered to declare statutes void if they violate the Constitution. Cases construing statutes have precedential effect against future cases arising under the same statute. In sum, the explosive growth of legislation has occurred within a common-law framework, which ensures the continued vitality of American case law.
Obviously, the Civil Law Tradition and the Common Law Tradition represent different legal philosophies. Yet it would be wrong to view the two traditions as wholly separate legal universes. National legal systems of one tradition have been influenced by the other. Stare decisis is not officially recognized in Belgium, France, Germany, or Italy, but high court decisions in these nations do influence lower courts. Conversely, every state within the United States has adopted the Uniform Commercial Code, a true code that has modernized American commercial law. Greater cross-influence can be expected as civil-law and common-law nations join together to create a working body of supranational law to cope with transnational legal problems.
As has been noted, both civil-law and common-law jurisdictions employ legislative and judicial processes to create law and to keep old law up-to-date. It must be emphasized that, in a democracy, the role of an elected legislature is crucial, as such a legislature, being chosen by the people in free elections, guarantees the political legitimacy of the law it makes. Legislatures consider the ills, the needs, and the political forces in society in the broadest sense--and undertake the creation of new laws, rules, and regulations to respond to these. Thus, the procedures by which a democratic legislature creates law must be fair and perceived as such by the majority of the population.
The United States has a bicameral (two-chamber) legislature, referred to as the Congress. The smaller chamber is the Senate, which has 100 members--two elected from each of the 50 states. The larger chamber--the House of Representatives--has 435 members, with the number of each state's representatives dependent upon each state's population. Unlike other national assemblies, the House and Senate have equal legislative powers, with the single exception that all revenue (taxation) bills must originate in the House. All legislative proposals must pass in both chambers to become law.
Each Congress sits for a two-year term, then adjourns. Any proposed legislation that has not been enacted during the term of a Congress automatically dies when Congress adjourns.
The process begins with the introduction of a legislative proposal--called a bill--into either the House or the Senate. Upon introduction, each bill is assigned a number that identifies that bill throughout its life in Congress. For example, one recently enacted law--the Americans With Disabilities Act, which guarantees certain rights to people who are physically or mentally disabled--started the legislative process as Senate Bill 933 (S. 933).
The House and Senate maintain separate networks of committees to analyze legislative proposals. After it is introduced, a bill is referred to the committee that has jurisdiction over the subject matter of the bill, or it may be referred to several committees with overlapping jurisdictions. Senate Bill 933 was referred to the Senate Committee on Labor and Human Services. At the committee stage of the legislative process, three events can occur.
The process described above occurs only if the committee favors passage of the bill. If the committee members are hostile or disinterested, a bill usually sits in committee until Congress ends, at which time the bill dies. More than 90 percent of all bills introduced in the U.S. Congress die in committee. The men who framed the Constitution and those who succeeded them and refined the legislative process made it difficult to pass legislation rashly. And since the foundation of the American republic, this has generally served the best interests of the American people.
If the bill does manage to reach the full chamber, it is placed on a legislative calendar that makes it eligible for action on the floor of the chamber. On the floor, the bill can be debated, amended, and, finally, in accordance with rules of parliamentary order, a vote will be taken on it.
If the bill passes in the first chamber, it is technically an act of that chamber, but it is still popularly known as a bill. The clerk of the chamber prepares an official (engrossed) copy of the bill, which is sent to the second chamber for its consideration. In the second chamber the three-step process is repeated. The bill is introduced, considered in committee, and then considered on the floor before passage occurs. This repetitive process has two practical effects: the bill may not pass the second chamber, or it may pass in an amended form.
If both chambers pass a bill in identical form, the measure--now an act of Congress--goes to the president for his consideration. If, however, some amendment occurs in the second chamber, the differences must be reconciled before the legislative process is completed.
Frequently, reconciliation is accomplished easily. The first chamber may simply accede to the amendments made by the second chamber, thus eliminating any differences. If, however, differences cannot be so simply resolved, a conference committee is appointed, drawing its members from the ranks of both the House and Senate. The committee has authority to act only on the precise differences between the House and Senate versions of the bill. The committee meets and writes a conference report that recommends specific action to resolve each point of disagreement. The report is then submitted to both chambers, which must then vote to accept or reject the report in its entirety.
If either chamber rejects the report, new conferees may be appointed to continue the process. If both chambers accept the report, they effectively pass the bill on identical terms so it can be sent to the president as an act of Congress.
During the legislative process, Congress generates many working papers. These include the original and amended versions of a bill, committee papers, and the verbatim transcript of floor proceedings. These documents are published, and they are used extensively by American lawyers and judges. If a statute is unclear or its policy ambiguous, American courts analyze congressional documents to ascertain the legislative intent behind the statutory language. This practice, however, is not universal. British jurisprudence has a long-standing tradition that the words of the statute speak for themselves and cannot be interpreted by examining other parliamentary papers. Hence, while both jurisdictions give full legal effect to statutes, differing weight is accorded to subsidiary legislative documents.
It must be added that if the president does not approve the newly-passed act of Congress, he may choose to veto it, in which case it is null and void unless Congress overrides the veto by a two-thirds majority vote in both chambers. The president, thus, becomes a major player in the crafting of federal law.
In the United States, the 50 states have their own legislatures as well; these create laws applicable to the residents of each state. Municipal bodies add another layer of law and regulation. In most of these bodies, democratic process is observed in that they are either elected or held accountable to the popular will by various means. The United States, in particular, tends to have layers of government--town, city, regional, state-wide, and federal--that have flourished since the founding of the country and that continue to contribute to the Common Law Tradition.
Most civil- and common-law jurisdictions use a two-tier judicial process. Cases are first heard by a trial court, with the possibility of review by one or more appellate courts. The exact process varies considerably from jurisdiction to jurisdiction. Nevertheless, how case law is created can be seen in this general portrait of an American civil (noncriminal) trial and appeal--which applies broadly to both the state and federal judiciary.
An American trial court proceeding unfolds in four stages: the pleadings stage, the discovery and pre-trial practice stage, the trial itself, and the post-trial process, which ends with the court issuing its judgment.
A civil action commences when the plaintiff--the party requesting judicial relief--files a complaint with the court and "serves" (presents) a copy of the complaint on the defendant, the party against whom the suit is brought. The complaint contains a series of concise factual allegations that constitute the basis of the plaintiff's claims on the defendant, which in civil cases are frequently for financial damages as the result of alleged injury, physical or financial.
Typically, a plaintiff may be an individual, a group of people, or a corporation or similar body. Likewise, a defendant may be an individual, a corporation, or even a government official or government body. If the plaintiff has multiple claims against the defendant, each claim is styled as a separate count within the complaint. At the end of the complaint is a prayer for relief, which recites the remedy that the plaintiff seeks from the court.
The defendant responds to the complaint by filing an answer. The defendant's answer addresses each allegation in the complaint either by admitting or denying the allegation or admitting the allegation but adding facts that avoid liability under the law. In addition to this defensive pleading, a defendant may bring a cross claim against a codefendant in the lawsuit or a counterclaim against the plaintiff. When this occurs, the opposing party has an opportunity to file a responsive pleading to defend against the new claims.
The complaint is intended to reveal the general nature of the suit that the defendant is called upon to defend. The answer rebuts parts of the plaintiff's case. Accordingly, the pleadings frame the claims and defenses before the court.
The next stage of the lawsuit--discovery and pre-trial motion practice--develops the lawsuit in two directions. Fact-finding and issue refinement occur. Fact-finding occurs through "discovery"--a general term for several pre-trial information-gathering procedures. Attorneys may pose written questions--called "interrogatories"--to a plaintiff or defendant to elicit facts. Attorneys may take out-of-court, sworn testimony--called a "deposition"--from a potential witness. Attorneys may exchange documents through the use of subpoenas. Most of these practices occur without judicial supervision.
The liberal rules of discovery allow the parties to gather information that is useful for building their own case and understanding their opponent's case. This knowledge enables the parties to make an informed pre-trial settlement--perhaps an agreed-upon monetary payment--or go to trial with a fully prepared case.
The third stage is the trial itself. A case may be tried by a judge or by a jury acting under judicial supervision. In a jury trial, the judge decides questions of law while the jury makes findings of fact. In a bench trial, the judge decides all matters of fact and law.
The trial begins with opening statements by the attorneys in which they summarize the case they hope to prove at trial. Then the plaintiff's attorney explains his or her case. Two types of witnesses may be called to present oral testimony: one is the occurrence witness, a person who can testify about some factual event that gave rise to the legal dispute. The other is the expert witness, whose opinion can clarify a complex aspect of the case for the judge or jury. All witnesses are sworn under oath and undergo direct examination by the plaintiff's attorney, followed by cross-examination by the opposing counsel. All testimony is recorded verbatim by a court reporter.
In addition to delivering testimony, witnesses may introduce physical and documentary evidence into the trial record. The opposing counsel might object to the admission of such evidence, in which case the judge--applying the governing rules of evidence--rules on the admissibility of the evidence. Throughout the trial, the rules of evidence are applied to screen out unreliable or prejudicial material from the record.
After the plaintiff's case receives its initial presentation, the defendant's counsel presents his or her case. Defense witnesses testify and proffer physical or documentary evidence. The plaintiff's attorney may cross-examine the defendant's witnesses and object to the admission of defense evidence.
After the defendant's case concludes, the attorneys for each side present closing arguments to the judge or jury. Each argument summarizes the evidence and presents the party's theory of the case.
Then, in a jury trial, the judge reads a set of instructions to the jury that states, in practical terms, how the governing law requires a jury to analyze the evidence. The jury deliberates in seclusion to weigh the evidence and arrive at its verdict. The verdict, read in open court, is expressed as a judgment for the plaintiff or defendant and indicates the amount of any monetary award to the prevailing party. Absent unusual circumstances, the judge enters an order in accordance with the verdict.
In the case of a bench trial, no instructions are needed. The judge, however, may ask the attorneys to file trial memoranda that discuss the applicable law. The judge then issues an opinion that states findings of fact and conclusions of law, and announces a judgment in favor of one party. A separate order is issued consistent with the opinion.
The parties then have a fixed period of time in which they may appeal the judgment to a higher court. The appellate courts systems vary from state to state, but litigants usually have an appeal as of right from the trial court to an intermediate appellate court. Further appeal to the highest court in each particular jurisdiction is often reserved for cases presenting important legal or social questions.
The appellate court does not re-examine the entire trial record. Instead, the attorneys present the court with specific questions for review that focus on the supposed errors made by the trial court. Each side submits a written "brief" to the court that analyzes the issues in relation to the governing law. The attorneys also compile a joint appendix to their briefs that contains relevant parts of the trial court record.
Appeals are heard by a panel of judges, often consisting of three judges. After the briefs are filed, the parties present their cases directly to the panel in a 15- to 30-minute oral argument.
After the oral argument, the judges discuss and vote on the case--with the majority determining the prevailing party. For unremarkable cases, the court announces its decision in a per curium opinion. Such an opinion merely announces judgment in favor of a party, with a cursory statement of the reasoning behind the judgment. More significant decisions are handed down in full opinions, each signed by the judge authoring the opinion. The opinion recites the material facts, frames the legal issues, and presents the decision of the court and the reasoning behind it. Any judge on the panel who agrees with the decision of the court but not with the underlying reasoning may write a separate concurring opinion. Any judge who disagrees with both the result and reasoning may write a dissenting opinion.
Of all the papers generated during this process, the appellate opinion is the only American judicial document that is systematically published. This reflects the fact that it is vested with precedential weight under American law and is thus critical to the development, maintenance, and refinement of the democratic legal framework in the United States. Needless to say, such precedential law-making is useless unless the records and results are widely disseminated; thus, the centrality of legal publishing to the entire process.
The legislative and judicial processes outlined above produce an endless stream of cases and statutes that are captured in legal publications. Although the legal literature of every nation is as unique as its law, such literature can be categorized into recognizable groupings.
Primary sources are those materials that contain the literal text of the law and can be cited as legal authority--statutory codes, court reports, and administrative gazettes are examples. Secondary sources are other materials that describe, explain, comment on, analyze, or critique the law but that are not the text of the law--including treatises, law journals, and legal encyclopedias. A third category, finding aids, refers to tools that lead the researcher to primary or secondary source material; indexes and case digests are representative finding aids.
Primary sources can appear in official (government) and unofficial publications. Often, official and commercial editions coexist for the same set of legal documents--for example, the opinions of the United States Supreme Court are published in one official edition and four commercial editions. Official editions carry some imprimatur of authority; lawyers preparing court memoranda usually must cite to official publications. However, commercial editions are generally better research tools because they are published more quickly than their official counterparts and usually contain supplemental research aids.
Legal Publishing in Common-Law Jurisdictions: Statutory materials fall into three categories: session laws, codes, and annotated codes. Session laws are chronological compilations of legislative acts. An example is the British Public General Acts and Measures, which has compiled the Acts of Parliament since 1831.
Session laws are difficult to use because they mix both current and superseded law. Hence, most jurisdictions also have a "code" version of statutes currently in force. As noted earlier, these are usually not true codes but subject compilations of previously enacted laws. A typical example of this sub-genre is the United States Code, which is an official compilation of current statutes arranged in 50 subject areas.
One step beyond is an "annotated code," which presents sections of statutes accompanied by paragraph summaries of cases that construe each statutory section. Hence the annotated code delivers current statutory law and serves as a bridge to the construing case law.
Court reports are chronological compilations of court opinions. Some court reports cover a single court. Others cover all appellate courts within a jurisdiction. Still others are topical reports that compile opinions from many different courts on a particular branch of law such as labor law. Most court reports have no indexes, so researchers must consult a companion set of books--called case digests--to find citations to cases on a given issue. Usually, a digest exists for each court reporter. So the opinions of the United States Supreme Court appear in the Supreme Court Reporter, which is indexed by the Supreme Court Digest.
Administrative rules and regulations issued by government agencies are usually chronologically published in a daily or weekly register that may be republished in a code format. Many agencies are empowered to adjudicate claims arising under their regulations. These administrative law decisions are often published in administrative case reporters, which may have their own digests.
Finally, lawyers in common-law jurisdictions rely on a wealth of secondary literature that ranges from practical treatises to scholarly law journals. These sources are useful at the beginning of a research project to garner commentary on legal issues and to collect citations to relevant cases, statutes, or regulations. Unlike the commentary of civil-law jurisdictions, these secondary materials are not authoritative.
Legal Publishing in Civil-Law Jurisdictions: Civil-law jurisdictions use four types of basic legal sources: the code, collected sets of "laws" (statutes, orders, decrees, and other nonjudicial legal statements), doctrinal material, and collections of cases.
Codes are published in various formats--some as concise paperbacks, and others as multi-volume sets with elaborate commentary. Many editions are revised annually to incorporate amendatory legislation.
The collections of laws fall into two categories. Some nations publish comprehensive official gazettes that contain legislation and other nonjudicial legal materials ranging from laws to official announcements. France's unwieldy Journal Officiel is representative of this publication type. Other nations issue a central publication that contains only laws, secondary orders, and decrees. Announcements and administrative material intended for internal use are published separately. The virtue of this arrangement is that significant legislation and regulation is collected in a manageable volume. The German Bundesgesezblatt typifies this sub-genre.
While common-law jurisdictions rely on decisional law to adapt the law to changing conditions, this function is performed by scholars in civil-law jurisdictions. Scholarly writing, termed doctrine, is remarkably influential. Commentary in treatises or legal encyclopedias that criticizes a judicial ruling may convince later courts to ignore the ruling as an untenable interpretation of the code.
Case law--called jurisprudence--occupies an informal position of influence in civil-law nations. Its influence may be due to the abundance of court reports that memorialize judicial reasoning. Both Germany and France have elaborate networks of court reports.
Legal Publishing in the Computer Age: Electronic information technology is reshaping legal publishing and research. Lawyers and judges are now using powerful on-line databases and CD-ROM materials to navigate through vast tracts of electronic literature.
Two commercial on-line research services, Lexis/Nexis and Westlaw, have become standard transnational legal research tools. Essentially both are huge electronic libraries that contain information from cases, statutes, regulations, law journals, and news sources. Currently, Westlaw has legal materials from China, Poland, and the United States. Lexis contains legal materials from Australia, Canada, France, Ireland, New Zealand, Britain, and the United States. Both also have legal materials from the European Community.
A researcher can access Lexis or Westlaw through a personal computer and a modem or through the Internet. The researcher dials into one of the services, types in a personal password, selects the desired database, and then types in a "search statement."
The search statement contains distinctive words that the researcher expects to find in relevant documents. The researcher links his or her search words together using system-defined "connector" terms. The system then performs a full-text search for all documents containing the search words as they have been connected together. Nearly every word in every document in the data file is searched, and the system retrieves only those documents that satisfy the search statement. For example, one could find cases discussing birth defects caused by the drug thalidomide by using the following search statement: thalidomide and birth defect.
Once the system retrieves a group of relevant documents, they can be read from a computer screen, printed, or downloaded to a computer disk. The powerful advantage of Lexis and Westlaw is that the researcher can by-pass the traditional indexes and case digests of law books and directly search the interior of the documents for a customized set of key words.
The CD-ROM format has created another exciting genre of electronic legal literature. CD-ROM--an acronym for Compact Disk Read Only Memory--is a high-density information storage device that looks pretty much like a music "CD." Remarkably, one CD-ROM can hold 200,000 pages of text in digital form. Connected to a single computer workstation, a CD-ROM can be searched in a manner similar to Lexis and Westlaw.
CD-ROM publishing is making the collection of large bodies of cases, statutes, and regulations from a given jurisdiction easier. Another trend is the topical library, which collects treatises, cases, statutes, and regulations on a specific area of law such as bankruptcy or taxation, all within the confines of a single CD-ROM.
National leaders easily see roads and rail systems as vital infrastructures within their countries. They should regard their national legal literature in the same light. No nation can hope to modernize under an archaic legal system, and no legal system can be considered modern without an orderly body of working legal literature. But how does one design literature?
The first step is to recognize that much of this literature is really government information--which is an invisible but manageable resource. Streams of government information flow from law-making bodies and pool in legal publications that form larger pools of knowledge in law libraries. The totality of these resources constitutes a legal information system.
An effective legal information system quickly incorporates new statutes and cases into the literature to create a complete record of all legal authority. It also permits researchers to locate easily discrete pieces of law in the mass of literature.
While a government seldom has an opportunity to build an entirely new information infrastructure, far-sighted officials can act strategically to improve the flow of legal information within their nations. They may find the following points useful.
The private sector can occupy an important role in any effective legal information system. The legal literature of developed nations has been greatly enriched by innovative commercial legal publications. Usually vigorous competition among legal publishers has led to efficient production of superior information products at market-responsive prices. Consequently, governments should not retain any monopoly over legal publishing, nor should the state condone any commercial monopoly; instead, courts and legislatures should make the text of new laws available to all potential publishers on equal terms.
While promoting robust private publishing, governments would be wise to publish official editions of important legal documents. Citizens of the poorest means need access to laws they are expected to obey. Official publications can also promote democracy by affording citizens a ready means to examine the laws created by their elected officials.
STYLES OF STATUTORY DRAFTING
The great codes of civil-law jurisdictions are celebrated for framing legal ideas in clear, elegant prose. In contrast, statutes from common-law jurisdictions tend to be technically worded.
Compare, for example, the provisions in the French Civil Code for the protection of civil rights with an analogous U.S. statute. The French Civil Code reads: "Every Frenchman shall enjoy civil rights." The U.S. statute reads: "Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress...."
BORROWING RULES OF COMMON LAW
A court in a common-law jurisdiction may borrow precedent from a sister jurisdiction to resolve a novel legal question. This practice can be seen in the extraterritorial persuasive authority of Bridges v. Hawkesworth, an 1851 English case famous for defining the possessory rights of those who find lost objects.
In Bridges, a person entered a shop and discovered a bundle of money on the floor. It had accidentally been dropped there by a stranger. The finder handed the bundle to the shopkeeper, expecting the latter to locate the owner. When the true owner could not be identified, the shopkeeper attempted to retain the banknotes and the finder brought suit.
All parties agreed that the unknown true owner had paramount legal title to the property; at issue was the limited right to possess the lost goods. So the question before the court was this: When lost goods are found by one on land owned by another, who may rightfully possess them--the finder or the landowner? Ruling for the finder, the court held that where lost personal property is discovered in a public portion of a shop, the finder has a possessory right superior to all but the true owner. Had, however, the goods been located in a nonpublic part of the premises under the shopkeeper's exclusive control, then possession would vest with the landowner.
Common-law jurisdictions around the world have both adopted the rule of law stated in Bridges and distinguished the case to frame new rules of law for slightly different circumstances. In Kowal v. Ellis, a Canadian court applied Bridges to award a finder possession of a pump found unattached on private land. Similarly, a New Zealand court held that police--as finders--were entitled to possess a large quantity of money discovered while executing a search warrant. An Australian court, applying Bridges, found the evidence insufficient to award a putative finder custody of a cache of English coins found on board a ship, while an Irish court distinguished Bridges to deny a finder possession of a ninth century Christian treasure--awarding it instead to owners of the land on which the treasure was found.
HOW A U.S. SUPREME COURT OPINION IS DISSEMINATED
Moment of release: As an opinion is read from the bench, the Clerk of the Court distributes a "bench opinion" to journalists. Simultaneously, the decision is released on a computer network--called Hermes--to major subscribers including wire services, newspapers, commercial publishers, and public information networks.
2 hours later: Researchers can read the opinion on either of two on-line legal databases: Lexis (Mead Data Central) and Westlaw (West Publishing Company).
3 days later: The Clerk of the Court issues approximately 400 printed copies of the "slip opinion" to the public.
5 to 7 days later: The opinion appears in commercial looseleaf publications such as the United States Law Week (Bureau of National Affairs) or the Supreme Court Bulletin (Commerce Clearinghouse).
1 month later: The slip opinion is edited and appears in paperback editions--called "advance sheets"--of two major commercial court report sets: the Supreme Court Reporter (West Publishing Company) and the United States Supreme Court Reports--Lawyers' Edition (Lawyers' Cooperative Publishing Company).
6 weeks after the end of the Court's term: The Court issues corrections to the opinion, and an interim bound edition of the Supreme Court Reporter appears.
6 to 18 months later: The opinion appears in a paperback supplement (the "preliminary print") to the official edition of the Court's opinions--the United States Reports (United States Government Printing Office).
2 to 2.5 years later: Once the Court announces that no further corrections will be made to the opinions for a particular term, bound volumes are issued for the Supreme Court Reporter and the official set, the United States Reports. (The Court is upgrading its text preparation system, which should reduce the delay in the publication of the preliminary print and bound editions of the opinions.)
NATIONAL LEGAL DATABASES
France: Juridial -- Full text of all French codes and documents from the Journal Officiel (1987- ); abstracts of earlier laws from the Journal (1936- ). Full text opinions from the Cour de Cassation (1960- ), Conseil constitutionnel (1958- ), and Conseil d'Etat (1958- ). Also available are bibliographic references to 200 journals and European Community law material. France also has Lexis-France, which is similar to Juridial.
Italy: Italguire -- Full text of national and regional legislation. Abstracts of the constitutional court (1960- ) and official head notes (massima) for cases from the Supreme Court: civil division (1962- ), criminal division (1966- ), and certain lower Italian courts. Also available are treaties, some European Community legal documents, and bibliographic information on secondary literature.
Switzerland: Swisslex -- Full text of federal decisions (1954- ) and cantonal decisions (1965- ), federal statutes, and some secondary literature including a Swiss legal bibliography. Federal cases are trilingual (French, German, Italian); other documents may be bilingual.
Source: Christiane Serkis Bishof. "Legal Databases in France, Switzerland, and Italy," 21, International Journal of Legal Information 7-15 (1993).
Cohen, Morris, Robert Berring, and Kent Olson. How to Find the Law, 9th ed. St. Paul, Minnesota: West Publishing Co., 1989. A standard work on American legal bibliography that also has chapters on English and Canadian legal research, general foreign law research, and international law research.
David, Rene and John E. C. Brierley. Major Legal Systems of the World Today: An Introduction to the Comparative Study of Law, 3rd ed. London: Stevens & Sons, 1985. Presents an excellent scholarly introduction to the civil- and common-law traditions.
Plucknett, Theodore. A Concise History of the Common Law, 5th ed. Boston, Massachusetts: Little Brown, 1956. An approachable history of the English common law.
Reynolds, Tom and Arturo Flores. Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World. Littleton, Colorado: Rothman, 1991. A truly magnificent three-volume overview of the legal publishing regimes of more than 150 nations and many supranational law-making bodies.
Willet, Edward. How Our Laws Are Made. Washington: U.S. Government Printing Office, 1990. The standard nontechnical work on the U.S. legislative process.
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About the Author: Bruce Kennedy is a law librarian and associate professor of law at the University of Toledo College of Law in the State of Ohio.
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