Current Technology Makes Non-Publication Unnecessary

• The arguments in favor of limited publication were premised on legal storage and research as it existed on the printed page.

• When limited publication plans were adopted, unpublished opinions were essentially banished from public existence since the bound volumes were the sole source of case law. But technological advances have changed this reality: in jurisdictions that allow for public distribution of unpublished opinions, online research services make these decisions widely available. Despite an opinion's unpublished status, public access is indeed possible.

• Questions of cost, fairness, access, and efficiency were all fundamentally linked to a paper-based publishing regime.

• Today, the information contained in thousands of volumes in a library can be stored in a single file cabinet.

• The cost savings from the resultant need for less physical space can be dramatic -- especially in the high rent office space in which many law firms are located.

• The physical storage and maintenance costs of electronic media are much less than paper volumes.

• Most publication costs are borne by the members of the bar, not the state. Since law firms and lawyers purchase a majority of volumes of reported opinions, the legal community and not the state pays most publication costs.

• The nature of legal research has already changed: the use of manual research has declined. A researcher today can sift instantly through a sea of case law, retrieving or Shepardizing a relevant case in a matter of seconds.

• The spread of computer-based research does not threaten the access to relevant law: Despite problems with free-text searches, especially within the narrow parameters of LEXIS and WESTLAW, finding "one good case" is usually sufficient to connect with relevant cases and authorities.

• A greater number of opinions published on a particular topic of law does not necessarily mean that confusion and contradictory decisions will result. A string of decisions usually reaches similar results, if precedents, published and unpublished, are available. Conversely, the refusal to publish decisions means that contradictory results are inevitable, turning the courts into casinos and undermining the very nature of the law.

• Computer-based research tools level the playing field. Even if access is not equal, more law benefits those with scarce resources. Without clear circuit precedent on point, an advocate must guess at the law -- by drawing analogies or extending dicta, by researching the law of other jurisdictions, or by reading treatises and law abuse. That is an expensive task, especially when compared to looking up to existing pieces of black-letter law.

• That many decisions reinforce prior holdings does not mean that more recent holdings should not be published. Recent holdings reveal the continuing strength of legal doctrine and illuminate whether it has been consistently upheld in varied factual circumstances. This is especially relevant in a rapidly changing world.