The Real (Legal) Thing

I’ve been reading the American Association of Law Libraries’ State-by-State Report on Authentication of Online Legal Materials. The report itself is repetitive, but the issue it raises is critical: How do we know what the law is? Even for seemingly well-defined legal materials like statutes, it turns out to be a difficult and troubling question. “Go look it up!” is the obvious retort, but it begs the question: Look it up where? If you said, “In the statute book, silly,” you’ve missed the point. How are we to know that the book is right? Couldn’t the printer have slipped in a little something extra, along the lines of the Buggre Alle This Bible?

This kind of worrywarting gets you digital signatures, the official kilogram, and statute books with the Parliamentary seal affixed to the binding. The point of the Report, though, is that states haven’t been paying proper attention to the digital equivalent of sealing wax. A fair number of states—by statute, even—purport to make online versions of their laws “official,” but there’s no guaranteed reliable certification process to establish that any given web page really reflects the duly promulgated text. The site could crash, someone with server access could change a few words here and there, an index might be mis-built and leave out a section—if you’ve worked with computers, I’m sure you have plenty of ideas. States could be using digital signatures, watermarking, chain-of-custody certification, or other authenticating practices—but for now, they aren’t.

Sure, sure, you may be saying, but how realistic are these scenarios? We can trust the site most of the time, can’t we? (If that’s the standard, by the way, can we please stop complaining that Wikipedia isn’t “always guaranteed” and start engaging with the question of how often it’s right and wrong.) Well, consider this. When I was on law review checking sources, I once found a case under two different names in different reporters. The plaintiff had one last name in the state reporter and a different one in the regional reporter—and since the opinion itself never referred to him by name, good luck figuring out which one was right.

And, oh yeah, the official kilogram is losing mass.