Saturday, May 31, 2014
How do we know that the version of any case, statute or regulation we read is an accurate one
The recent kurfuffle about Supreme Court Justices changing the text of already released opinions raises the larger question of how we can ever know whether the version of any statute or case or regulation we are reading is the “final one.” It also highlights the problem of of linkrot that is also affecting the reliability of judicial opinions.
Given how important a problem it can be if the text we rely on is wrong, its interesting that authenticating information places no role in the legal curriculum. I never gave it a thought until one of my dissertation advisors asked me to write a methodology section that explained to lay readers “where statues and opinions come from” and “how do we know they are reliable.” Here's a highly abbreviated version with some helpful links (reliable as of posting, May 31, 2014).
For statutes, all roads led to the National Archives and the Government Printing Office which operates the FDYS. The National Archives operates the Office of the Federal Register (OFR), which receives laws directly from the White House after they are signed by the U.S. President..” The accuracy of these texts is assured by “[t]he secure transfer of files to GPO from the AOUSC [that] maintains the chain of custody, allowing GPO to authenticate the files with digital signatures.”
The GPO assures us that it “uses a digital certificate to apply digital signatures to PDF documents. In order for users to validate the certificate that was used by GPO to apply a digital signature to document, a chain of certificates or a certification path between the certificate and an established point of trust must be established, and every certificate within that path must be checked." Good news.
The GPO has developed a system of “Validation Icons”--explained further on the Authentication FAQ page.
Editors at the OFR then prepare a document called a “slip law,” which “is an official publication of the law and is admissible as ‘legal evidence.’” It is the OFR that assigns the permanent law number and legal statutory citation of each law and prepares marginal notes, citations, and the legislative history (a brief description of the Congressional action taken on each public bill), which also contains dates of related Presidential remarks or statements.” Slip laws are made available to the public by the GPO online.
The system is more complicated when it comes to judicial opinions. Each of the Eleven Circuit Courts of Appeal issues its own opinions. For example, this is the website of the Fifth Circuit Court of Appeals, The GPO has joined with the Administrative Office of the United States Courts (AOUSC) “to provide public access to opinions from selected United States appellate, district, and bankruptcy United States Courts Opinions (USCOURTS). Currently the collection has cases only as far back as 2004As indicated by the term “selected,” this database only contains some of the federal courts.
The official source for the opinions of the U.S. Supreme Court of the United States is the U.S. Supreme court itself. Pursuant to 28 U.S.C. § 673(c), an employee of the U.S. Supreme Court is designated the “Reporter of Opinions” and he or she is responsible for working with the U.S. Government Printing Office (GPO) to publish official opinions “in a set of case books called the United States Reports.”
According to the Court, “[p]age proofs prepared by the Court’s Publications Unit are reproduced, printed, and bound by private firms under contract with the U.S. Government Printing Office (GPO). The Court’s Publications Officer acts as liaison between the Court and the GPO.” Moreover, “the pagination of these reports is the official pagination of the case. There are four official publishers of the U.S. Reports but the court warns on its website that “[i]n the case of any variance between versions of opinions published in the official United States Reports and any other source, whether print or electronic, the United States Reports controls.”
To some exent this latest information suggesting that there may be different versions of opinions at different times fits in well with the history of the court. As most of us know, the Supreme Court did not have an official reporter until the mid-nineteenth century and did not produce a written opinion for every decision. Moreover, it has only been recording oral arguments since 1955 and although now issues same day transcripts this was hardly always the case. Also now available are the remarks that the Justices make when reading their opinions. But, and no link is missing, I don't have one, in hearing Nina Totenberg give a key note presentation at ALI in 2012 about her days at the court, she pointed out that when she began covering the Court this was not available. And that it was not unusual for notes to differ on exactly what the Justices said.
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