The Information Rich, the Information Poor and the Legal Information Underclass: Access to Unpublished Precedent and Use of CALR (Computer Assisted Legal Research)

Tomas Lipinski


The debate over the widening gap between the information rich and the information poor is a concept that is secure and fixed in the fields of information policy and information ethics. Previous work has addressed problems of the First World versus the Third World order or has investigated, within the context of the United States for example, the disparate access to communication and information technology. This paper presents original research into the context of the information rich and poor within a genre of information production in the United States, specifically its legal system and the access, communication and use of unpublished case law or precedent. This detailed study can serve as a microcosm of the broader information rich and information poor debate.

Within the American legal system, federal appellate case law is designated as either published or unpublished. This designation is made, in most instances, by the court or through an advisory panel. It is an objective process more or less, but previous studies have identified prejudice. Notwithstanding this possible taint, if a case is so designated as “unpublished” litigants and other courts are prohibited from citing the case. In addition the text of the case is not readily available through traditional legal print reporters. However it is available to users who have access to online legal databases such as Westlaw or LEXIS-NEXIS. Generally, those who can afford the higher cost of computer assisted legal research (CALR) will have access to this precedent, those who can not afford CALR (pro se, prisoners and other “lower” order litigants) do not. It is in this scenario that the present study attempts to identify a disparity of access. The “upper” order litigants do not cite the unpublished precedent, yet may nonetheless use the content of the unpublished precedent to their advantage, often without the knowledge of the court or opposing party. Lower order litigants, as well as the supervising court may not realize the extent to which the unpublished precedent was used, although not cited, to the advantage of the upper order litigant.

In order to assess the magnitude of this problem, first the incident and use of unpublished precedent in a sample of United States Court of Appeals is examined. Second, a review of the unpublished precedent actually cited is reviewed. This review is done both by litigant type and broad subject matter of the case. This accomplishes two tasks. First, it identifies the character of litigants in unpublished precedent consistent with previous studies (upper or lower order). However, unlike previous studies, this determination focuses upon those unpublished cases actually used as precedent by the United States Courts of Appeal, and so provides a more accurate position from which to assess the claim of disparity in unpublished precedent designation and its actual legal impact, at least as that impact is expressed by its subsequent citation by courts in the sample. Finally, a study of those cases that were by motion re-designated as “published” (originally issued as unpublished by the court) is analyzed to identify the characteristics of the parties who request and potentially benefit from a republication. Not only will this study document the disparity that occurs with respect to basic legal information, but also provides informetric techniques that might be used to assess information disparities in other areas for other researchers.