Between Paper and Pixels—How the Form of Modern Laws Changed Their Function


Between Paper and Pixels—How the Form of Modern Laws Changed Their Function

Dru Stevenson

In Parchment, Paper, and Pixels, Peter Tiersma deftly traces the evolution of law from oral traditions and decrees to written texts and finally to digital files (Tiersma 2010). Tiersma observes that the shift from oral laws to text allowed editing by the original writers, and that writing gave the laws a greater sense of permanence and further reach across space and time. For a long period, he notes, the legal texts were subordinate, in terms of authority, to the oral laws or decrees that they memorialized. Eventually, as populations became more literate and procedural rules safeguarded (or at least symbolized) governmental legitimacy, the written laws took primacy. Even today, however, courts routinely look to the legislative history of statutes, including the transcripts of oral debates, in construing the meaning of statutory provisions; the oral component of laws has not disappeared completely. After discussing the advent of modern statutes and modern technology, Tiersma moves on to speculating about how the Internet and computer word processing software could allow for judicial editing of statutes or easier public referenda.

Drawing on Tiersma’s historical vision, here I will add to the discussion by filling in some history that occurred between the “paper” and “pixels” eras, when codification replaced the publication of statutes sequentially. This shift raises an important issue: How the format of the body of statutory law, its arrangement in compilations, can affect the legal system overall. During the Victorian Era, the shift from chronologically published enactments to topically arranged, continuously updated codes brought major systemic changes, a point that Tiersma describes thoughtfully in his article, The Textualization of Precedent (Tiersma 2007: 1234). The change to the legal landscape, in fact, was nearly as great as when law leapt from the spoken to the written word in the Medieval period. Along with other factors such as immigration, urbanization, population growth, and new technologies, the wave of codification (Cook 1991; Lieberman 1989: 181–85, 239–55) contributed to the explosion of legislation and regulations in the United States during the twentieth century.

Between the Civil War and the Second World War, both federal and state governments changed their approach to the compilation of legislation (Clarke 1898: 33–43, 263–341). The new approach partially adopted the ideals of the codification movement—statutes published with systematic-topical arrangement, indexing, and hierarchically numbered sections and subsections. Prior to the Civil War, legislatures published enactments in chronological order by date of passage. The traditional arrangement made it very difficult for lawyers, judges, or even legislatures to determine whether the legislature had previously addressed a subject in an obscure part of an enactment (Cook 1991). In theory, one would have to read all the enactments of a legislature, from the beginning, to find what enactments had mentioned a legal issue and whether there were subsequent repeals, amendments, or revisions. Legislatures could pass a new law, in fact, without realizing that a prior law existed on the same subject. With no computers, statutory research was nearly as cumbersome as case research—looking for a needle in a haystack. Topical summaries of laws—called digests—were invaluable (Lieberman 1989

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