Legal Communication & Rhetoric: JALWD
Legal Comm. & Rhetoric
This article seeks to answer two main questions. The first is whether courts cited the same cases as the parties more often during the print era than during the digital era. The second is what, if anything, the answer to the first question can contribute to the debate about how print-era forms of organizing and describing case law influenced researchers’ behavior. To that end, we sampled cases from 1957, 1987, and 2017, and used “citation stickiness” to study the differences in how parties and judges cited authorities during each of those years. In short, we found that there is less agreement about what case law authorities are relevant to an appeal between parties and judges in 1957 than in 1987 and 2017. This casts doubt on the existence of a cozy “universe of thinkable thoughts,” or the longstanding theory that classification schemes like West’s American Digest System led to greater coherence and stability in the development of common law in the United States.
In section I of this article, we review the literature on how switching from print research to digital research influences lawyers’ research habits and conceptions of the law. We then look at prior empirical studies assessing the kind of law found by researchers within different research environments or by using different research processes.
In section II of this article, we introduce the citation stickiness metric and describe our methodology.
In section III we present our results, which show that there is a significant difference between 1957, 1987, and 2017 in how often courts cite cases originally cited in at least one party’s brief. We also explore some other possible conclusions gleaned from our data. Finally, we speculate on the reasons why we found what we found and identify questions for further study.