Other than the addition of a syllabus at the beginning, and a few more headings, case law hasn't changed a bit since 1923. Does that seem strange to anyone else?
If you were to reimagine case law, what would it look like? Here are a few ideas.
1. Syllabi Everywhere
The Supreme Court has syllabi, as does the Ninth Circuit, but the practice is far from universal. A good place to start would be to standardize the formatting in cases in all state and federal courts, with syllabi and consistent headings.
2. Rethink Citations
When was the last time you read an opinion in a book? 262 U.S. 390 was appropriate for ninety years ago. Today? The closest thing we have to a uniform system that ignores passe paper citations are WestLaw and Lexis's proprietary formats, which are, of course, incompatible with each other.
It could be as simple as [Year] [Court] [Opinion Number], [Paragraph Number]. Instead of pinpoint citations to paper (i.e., 944 F.2d 589, 595-96 (9th Cir.1991)), you'd get 2013 US 9th 0023, 41.
3. Move Citations to Footnotes
It's like Brian Garner was in my head. Right after I finished reading a terribly-written opinion, which included one of those lazy [quote legal standard][cite][quote legal standard][cite][quote legal standard][cite] paragraphs that make your eyes hurt from jumping past cite after cite, I ran across Garner's brilliant and simple proposal: move citations to footnotes. Garner's example:
"Our opinions in Hughes Aircraft Co. v. United States, 86 F.3d 1566, 39 USPQ2d 1065 (Fed. Cir. 1996) (Hughes XIII) and Hughes Aircraft Co. v. United States, 140 F.3d 1470, 46 USPQ2d 1285 (Fed. Cir. 1998) (Hughes XV) do not lead to a different result. Hughes XIII explicitly held that Hughes Aircraft Co. v. United States, 717 F.2d 1351, 219 USPQ 473 (Fed. Cir. 1983) (Hughes VII) was entirely consistent with our intervening en banc decision in Pennwalt Corp. v. DurandWayland, 833 F.2d 931, 4 USPQ2d 1737 (Fed. Cir. 1987). Hughes XV held that WarnerJenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule. 140 F.3d at 1475, 46 USPQ2d at 1289. In neither case was there controlling authority that in the interim had made a contrary decision of law applicable to the relevant issue."
"Our opinions in Hughes XIII¹ and Hughes XV² do not lead to a different result. Hughes XIII explicitly held that Hughes VII³ was entirely consistent with our intervening en banc decision in Pennwalt v. DurandWayland.⁴ And Hughes XV held that WarnerJenkinson provides no basis to alter the decision in Hughes VII because the court properly applied the all-elements rule.⁵ In neither case was there controlling authority that in the interim had made a contrary decision."
Not everyone is on board with his proposal, though he notes that a "worthy minority" of judges have adopted the footnoted format. Key critics include Justice Antonin Scalia and Judge Richard Posner.
4. Stop PDFing Everything
What loads quicker -- a web page or a PDF? Which is more accessible to those who need to adjust font sizes? Are there any advantages to PDFs, other than ensuring pretty formatting? Opinions presented in HTML format could have hyperlinked footnotes, anchor links to jump to other parts of the opinion, as well as linked citations to other cases, statutes, etc.
Lawyers are notoriously slow to change. Let's make an exception to that rule and find a way to shove the backbone of our profession, the opinion, into the 21st century.
What would you change about case law? Tweet your thoughts to @FindLawLP.
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