Legal Research

The Law the Court Missed

By Simon Chester

While we have mentioned situations where important provisions have been dropped into miscellaneous statutes, the NYT, Volokh and the ZDNet blog is reporting a quite extraordinary case where the litigants and the US Supreme Court appear to have completely overlooked a relevant statutory provision¹, for a couple of reasons:

it got dropped into an elephantine budget measure for military appropriations
the major legal databases apparently scant the relevance of military law

Both sides and the Judges involved in a recent U.S. Supreme Court judgment missed the applicability of an explicitly on-topic Act of Congress: the military justice provisions in the the National Defense Authorization Act (2006) - apparently because the legal research tool used by all three groups turns a blind eye to military and related law.

One commentator expressly comments on what this means for legal research:

The more interesting point is how it changes the way we ought to think about legal authority. It appears the law finding mechanism we use to inform the Court about what the law is laughably inefficient in the era of the Web and the blogosphere. The Court is supposed to be, among other things, the really deep, really well informed body on our federal law, right? Yet they missed something a blogger came up with off the top of his head.

1. Which would have slightly undercut a factual basis for Justice Kennedy’s decision

Full post as published by Slaw.ca on July 15, 2008 (boomark / email).