Law Reports, Transcripts, and the Fabric of the Criminal Law —A Speculation
| Author | Roderick Munday |
| Published date | 01 July 1995 |
| Date | 01 July 1995 |
| DOI | http://doi.org/10.1177/0032258X9506800309 |
| Subject Matter | Article |
Law
Reports,
Transcripts,
and
the
Fabric
of
the
Criminal Law
-A
Speculation
Roderick Munday*
Abstract
Thanks to the advent of searchable, computerised archives of
unreported (but fully referenced) appellate decisions, anyone researching
a legal problem today has ready access to a vast mass of previously
concealed authorities. This article speculates on one of the troubling
possibilities this cornucopia brings with it: namely, that if one surveys
the
full range of materials
now
accessible, one may actually need to re-
configure what were previously assumed to be settled bodies of knowl-
edge. Using
the
soon-to-be-defunct similar fact evidence principles as an
illustration, this article is
not
so
much
intended offer a proof of
the
thesis,
but
to throw
out
a teasing question that, in truth, goes to
the
root of
English legal method.
'When
Iwrite something, I
think
of it
not
as being factually
true
(mere fact is a web of circumstances
and
accidents),
but
as being
true
to something deeper.
When
Iwrite a story, I write it
because
somehow
Ibelieve
in
it-not
as
one
believes
in
mere
history,
but
rather
as
one
believes
in
a
dream
or an idea.'
Jorge
Luis
Borges
l
As computerised databases
began
to take hold, it was
apparent
that
the
pre-eminence of conventional
law
reports,
and
even
the
very concept of
reporting
the
law, could be altered forever. This article will
ponder
one
potential, long-term implication of
the
retention
of computer-generated
transcripts of all judgments.
English lawyers
have
for long expressed concern at
the
sheer
bulk
of
case
law
at
their
disposal. Scholars
have
sought, in different ways, to
conveysome sense of its magnitude. In 1951, at a time
when
recourse to
unprinted
sources was comparatively rare, Glanville Williams reported
the
melancholy fact that, ignoring
the
hordes of
unreported
cases,
the
English
canon
comprised in excess of 312,000 reported cases.' Twenty
years earlier, in a singular
paper
in
the
Juridical
Review,
acommentator,
evidently
with
time on his hands,
had
calculated of
the
English
Reports
that
'the
type used would,
if
set in a straight line,
extend
to 1,100 miles;
and
the
same type on
the
printed page
would
cover 73 square miles'.3
Indeed,
one
could legitimately claim
that
anxiety over
the
available
quantity of reported (and, to a degree, unreported) case
law
has
been
in
some sort aconstant of
the
common
lawyer's predicament. The fear
that
*Fellow of Peterhouse, Cambridge.
Aversion of this article was delivered as a 'IWilightSeminar to Victoria's Judicial
College at the Sir Zelman Cowen Centre, Melbourne (Australia)
ill
December 2003.
Iam grateful to Peter Mirfield for his comments on
an
earlier version of this article.
1
In
C.-A. Michailescu (ed.), ThisCraft of
Verse
(Harvard University Press: Cambridge,
MA,
2000)
113-4
(Charles Eliot Norton lectures
1967-1968).
2The Reformof the
Law
(Gollancz: London, 1951) 15.
3The English
Reports
1931 43 JR 96 at 99.
227
The Journal
of
Criminal Law
the
case-law system might choke
upon
its
own
fecundity adheres to a
tradition traceable back to Coke, who, in
the
preface to
the
third volume
of his
Reports,
warned:
[I]n truth,
if
judges should set down the reasons and causes of their
judgments within every record, that immense labour should withdraw
them from the necessaryservices of the common wealth, and their records
should grow to be Elephantini libri of infinite length, and in mine opinion
lose somewhat of their present authority and reverence."
Perhaps,
the
great mystery is that, as yet, no common-law system has
ever actually seized
Up.5
The volume of case law available to a lawyer today is daunting. In
reaction to this brimming cornucopia, courts have even experimented
with
various no-citation rules, which seem to have exerted
but
marginal
impact."
What
is crystal clear is
that
the ready availability of transcripts
-now,
computer-genera
ted-has
considerably aggravated matters.
Many
judges nowadays firmly believe
that
too
many
cases are cited in
argument
before them;
many
lawyers consider
that
too
many
author-
ities have to be trawled during legal research; it is widely feared
that
the
law runs
the
risk of becoming even less accessible to lawyers, let alone to
the
public it is
meant
to serve;
and
so on,"
The legal system, meanwhile, has
had
no option
but
to adjust to these
deteriorating conditions. On
the
one
hand, technological developments
have
been
embraced,
and
a
new
form of computer-friendly
'neutral
citation' has
been
adopted, making ready identification
and
retrieval of
almost
any and
every decided case possible." Indeed, neutral citation
now
takes precedence in court over conventional law report references,
which themselves for some years have
been
ordered into a semi-
formalised hierarchy of citation." As against this, in a bid to counteract
the
perceived
ill
of over-citation,
the
courts have grown more fierce in
forbidding
the
citation of certain species of unreported authorities.10
Few, however, can imagine
that
such modest palliatives will have
much
effect.
4 2 Co Rep
iii
(Butterworth: London, 1826), J. H. Thomas (ed.).
5See, R. Munday, 'New Dimensions of Precedent' (1978) XIV JSPTI. (NS) 201; 'Case
Law
and
the
Computer' (1984) 1
Yearbook
of
Law,
Computers
and
Technology
136.
6For example,
Roberts
Petroleum
Ltdv
Bernard
R. Munday, 'The Limits of Citation Determined' (1983) 80 LSG 1337.
7 See, e.g.,
the
judgment
of Laddie J in
Michaels
v
Taylor
Woodrow
Developments
Ltd
and
Chase
v
News
Group
Newspapers
[2002] EWHC
1110
at [48], per
Eady J.
8See
Practice
Direction
(Judgments:
Form
and
Citation)
[2001] 1WLR 194, discussed in
R. Munday, '"Official" Law Reports, Neutral Citation
and
other
Curiosities: Another
Visitto
the
Grand Canon' (2001) 165 JP 342 at
344-5.
9See
Practice
Direction
(Court
of
Appeal:
Citation
hierarchy produces
another
order of problems: see, e.g., R. Munday, 'The "Official"
Law Reports' (2001) 165 JP 162.
10 R. Munday, 'Over-Citation: Stemming
the
Tide' (2002) 166 JP
6-9
(Part I); (2002)
166 JP
29-32
(Part
IT);
and
(2002) 166 JP
83-7
(Part
ill).
Atendency towards over-
citation of course will be endemic to almost any common-law system. For a recent
study of this
phenomenon
in
the
USA,
where
the
difficulties appear even more
acute, see K. Laretto, 'Precedent, Judicial Power,
and
the
Constitutionality of "No-
Citation" Rules
in
the
Federal Courts of Appeals', 54 Stan L Rev 1037 (2002).
228
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