"From the late nineteenth century, the development of the American legal system can be seen as a history of the development of forms of legal publication. This history poses the question whether the forms of publication have been mere vehicles for the transmission of legal knowledge, or important influences in the development of that knowledge."
Before the development of information retrieval systems in the United States is explored in detail, it is necessary to address two questions that arise at the outset: (1) Why discuss the development of research methods in the United States in isolation? It seems to be a subject that is far removed from the topic of international sales law. (2) Why limit this discussion to the development of research methods in that country? Do the authors suggest that US legal research methodologies are better than those of other jurisdictions? Does an information retrieval system derived from a common law tradition based on stare decisis provide an adequate model for the progression of a global uniform application of international sales law?
The first question can be answered rather simply. Because the connection between international sales law and information retrieval systems does seem remote in the abstract, it is easier to explain by example: first, by outlining the connection between research methodology and the development of substantive law; second, by analogizing this evolution to the impact that the same approach could have on the uniform application of international sales law.
To answer the second question, the importance of case law in the fruition of international sales law must be addressed. The goal of attaining the uniform application of international sales law lends itself to an analysis of case law as a means to obtain uniformity. In fact, "the practitioner of the CISG has a duty, extrapolated from [Article] 7(1), to consider case law from other Contracting States and other states applying the CISG via Article 1(1)(b), as well as from arbitral tribunals."
A comparison of case law from varying jurisdictions will provide information on the manner in which the law has already been applied, thus making uniformity more viable.
A global jurisconsultorium on uniform international sales law is the proper setting for the analysis of foreign jurisprudence.
Additionally, reliance on case law is not unique to common law jurisdictions. Civil law tradition, although basing its history on reliance on a code and not stare decisis, has been moving towards a stronger reliance on case law.
Finally, the analysis of the development of information retrieval systems in the United States was chosen because the factors that were present over one century ago - when modern research systems were conceived for US domestic law - is a picture that can again be painted at the start of this century, but for international sales law.
"Knowledge is of two kinds, we know a subject ourselves, or we know where we can find information upon it."
"In substance our law is excellent, full of justice and good sense, but in form it is chaotic. It has no systematic arrangement which is generally recognized and used, a fact which greatly increases the labors of lawyers and causes unnecessary litigation."
The official reports were often years old by the time they reached the practicing bar, and the quality of the reports, once filtered through various publishers, varied and could not necessarily be relied on because the information was not gathered and organized in a systematic way. Methods of classifying and arranging the law tended to create chaos in the law itself.
In both eras, bits and pieces of legal jurisprudence and doctrine are scattered, rather than brought together into a coherent body of information. The search methodology is varied, if existent at all; research results vary from lawyer to lawyer and from jurisdiction to jurisdiction. The time it takes to obtain copies of decisions is long and there are never assurances that the practitioner has accessed all of, and is applying, the most current information. Like their counterparts of a century ago, researchers today are almost guaranteed to miss information,
Yet, a comprehensive case law reporting and classification system to organize US law did prevail and furthered the substantive development of the law. Because of their incredible success, these classification systems are analyzed here to determine whether a similar approach can have the same salutary impact on the growth of international sales law today.
1. Development of Case Reporters in England and the United States
Reporting of cases has a venerable tradition in both England and the United States. English-language case reports, Year Books, were manuscript law reports prepared from 1292 to 1535.
Nomative case reporters
Edmund Plowden published the earliest nominative reports in England in 1571. Plowden's reports were characterized by their high degree of accuracy and completeness, a standard that was unfortunately not met by later compilers.
In the United States, the era of nomative court reports began in 1789 with Ephraim Kirby's Connecticut Reports.
By 1810, nomative reports were being published for the US Supreme Court, as well as for the state courts of Connecticut, Vermont, New York, Massachusetts and New Jersey.
It was not until after the Civil War, when the number of cases in the US increased dramatically, that commercial reporting developed.
2. The Impact of West's Case Digest System on American Research Methodologies and the Development of Substantive Law
West introduced two distinct ideas to the US legal community that have had a profound effect on the development of US law. First, West introduced the idea of comprehensive case reporting through its National Reporter System. ". . . Cases, whether "legally worthy" or not, were entered into his "blanket system" of reporting."
"One effect of the blanket system, established by the West Publishing Company, has been to present the reports of several states in a single series . . . . This must necessarily have the effect of bringing about more general comparison of the adjudications of the different American jurisdictions upon particular questions, which must in the end result in a unification of the law."
The blanket system had unintended consequences, and led to West's second great contribution to the development of American law. The eminent legal scholar, Grant Gilmore, noted that the effect of West's blanket report system was that "the number of volumes published increased year by year in geometric [page 233] progression . . . there were simply too many cases, and each year added its frightening harvest to the appalling glut. A precedent-based, largely non-statutory system could not continue to operate under such pressures."
In order to foster efficient access to what Gilmore referred to as the "appalling glut" of case law, West purchased the U.S. Digest from a competitor in 1887, and eventually replaced it with the Century Digest in 1896.
West developed a subject classification system that satisfied the requirements for the American state and federal systems.
In the same vein that legal entrepreneurs were thinking over 100 years ago, the international sales law community at the dawn of this century must consciously decide how it wants to organize legal information so that it can begin to mould the manner in which the world conceptualizes international law.
- Prominent UNCITRAL initiatives include the appointment of National Correspondents to identify and report CISG cases from their jurisdictions; publication of abstracts of CISG cases - CLOUT [Case Law On UNCITRAL Texts] abstracts that are widely disseminated by UNCITRAL and others - and, most recently, UNCITRAL interpretive analyses of CISG cases. The latter program has commenced with analyses of issues associated with CISG article 6 and CISG article 78. For information on these subjects go to UNCITRAL's web site, ‹http://www.un.or.at/uncitral›. UNILEX, edited by Michael Joachim Bonell, also provides an admirable service to our profession: abstracts and full texts of CISG cases and other materials. UNILEX is a commercial service, available from Transnational Publishers in either printed form or CD-ROM. Many of the case texts reported in UNILEX can also be obtained from UNCITRAL or on the Autonomous Network of CISG texts, see below.
- The Institute of International Commercial Law of the PACE University School of Law, in consortium with the Centre for Commercial Law Studies of Queen Mary College, University of London (QM College), and others has launched related initiatives.
- In concert with learning centers of many countries, Pace has helped foster the creation of an Autonomous Network of CISG Websites ‹http://www.cisg.law.pace.edu/network.html› The CISG online web site of the UNIVERSITY OF FREIBURG, set in place by Peter Schlechtriem ‹http://www.jura.uni-freiburg.de/ipr1/cisg/title.htm›, is a pioneer participant in this network.
- Pace, in concert with QM College, has also helped set in place a Case Translation Programme ‹http://www.cisg.law.pace.edu/cisg/text/queenmary.html›. More than 100 QM translations of CISG cases should be freely available on the Internet prior to year-end.
- A most recent activity is co-sponsorship by QUEEN MARY and Pace of the Vienna International Sales Convention Advisory Council (CISG-AC). This Council was established on June 2, 2001. The Chair of the Council is: Peter Schlechtriem. Other charter members of this Council are: Eric E. Bergsten, Michael Joachim Bonell, E. Allan Farnsworth, Alejandro M. Garro, Royston M. Goode, Sergei N. Lebedev, Jan Ramberg, Hiroo Sono and Claude Witz. Loukas M. Mistelis is Secretary of the Council. The first two interpretive rulings of the Council are to be on notice of lack of conformity of goods and electronic issues under the CISG. They are being authored by Council members Eric E. Bergsten and Jan Ramberg. The Charter of the Council calls for endorsement of each interpretive opinion by all members of the Council; where that is not feasible, reasoned concurring or dissenting opinions by Council members are written. In this respect, the rulings of this "Conseil des Sages" will be similar to those of national Supreme Courts.