By Jason Wilson
I read with great interest this week Daniel Poulin’s post on Slaw discussing “Illustrated Judgments.”
This column is about … the growing presence of non-textual elements in the judicial discourse. Reference to video and eventually inclusion of videos in judgments are certainly the more spectacular innovations, however, inclusion of images or graphical elements in judgments (or in other legal documents, such as as legislation) is in no way a recent phenomenon. [¶] The first occurrences of illustrated judgments available on CanLII date back to the XIX century. [¶] If the nineteen century cases already show uses of graphical elements, recent judgments rely much more on images. Sometime, these non textual elements seem the only way to give access to central factual elements of the litigation. [¶] Despite their importance, as of today, images are not always present in the judgments reproduced in electronic database systems. In some of the main data sources of legal information in Canada images are frequently ignored without mention. It could be surprising to some that more than a century after their introduction in the law reports, graphical elements are not readily supported in all our legal databases.
Like Canada, U.S. opinions have referred to, incorporated, relied on, and otherwise weaved nontextual elements into the decision making process for over a century. And yet, we don’t really discuss these elements when talking about (1) the quality of a case law provider’s data set and (2) the capabilities of their platform. So let’s ask the question. Do WestlawNext, Lexis, Loislaw, Casemaker, and Fastcase databases include nontextual elements, and if so, how are they handled?
As best as I can tell (doing some quick searches), WestlawNext, Lexis, and Loislaw have nontextual elements and currently support either inline images (WestlawNext) or links to pdfs. I could not find any on Casemaker and I didn’t test Fastcase. But I’m guessing that for those providers that include them, it is only for more recent opinions in their data set, say those issued within the last 5 to 10 years. (If you know otherwise, please feel free to correct this assumption.) Several of my searches yielded older opinions that refer the reader to “the original,” meaning the bound volume, or simply say the graphical image is not “electronically transferable.” In other words, we could be looking at a century of nontextual elements in court opinions simply vanishing because no one uses bound volumes any longer. I find this to be a bit troubling.
As for how the images are handled (beyond representation on the screen), I don’t believe any of the providers make nontextual elements searchable, even the newest ones. I’m not making a judgment about whether such search capability would be good, neutral, or bad, but I do think we should begin a conversation about its value.
And none of this gets to other issues, some of which were raised by Poulin’s post, such as use of embedded video and other nontextual images. I think link rot, which has been a hot topic of conversation lately, will also have to be addressed, particularly in the context of who is responsible for preserving our law, the state or private sector?
Another point I’d like to make is that when we talk about “scope” of coverage, we might want to ask whether that means only textual elements or both textual and nontextual ones. After all, if a court found it important enough to include in its opinion, then shouldn’t it be part of the (digital) law we research?
[Image (cc) Mr. T in DC]
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Post Links:
Daniel Poulin, Illustrated Judgments on Slaw.ca (May 25, 2010)
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