The Supreme Court has been quietly revising its decisions
years after they were issued, altering the law of the land
without public notice. The revisions include “truly
substantive changes in factual statements and legal
reasoning,” said Richard J. Lazarus, a law professor at
Harvard and the author of a new study examining the
phenomenon.
That's called content management, and it's been used in most large companies for 15+ years. Unfortunately, it's a really ugly problem, not because of technology, but because of people. I spent five years working with higher ed on content management issues, and the technology is the easy part. Getting people to change habits, getting business processes to align with technology, integrating in with all of the various systems that documents interact with, now those are hard problems.
Whoever solves that problem will be a very wealthy individual, but, like many organizational people-problems, it may be intractable from a technology perspective.
Thanks for the info and experience. Very interesting.
From what I know, the content management sector has a problem of being too generic, trying to handle any form of content, including digital media content, which has very different requirement than documents. Version management is low in the requirement list. Also indexing and searching are a big part of the requirements, which lead to the emphasis on OCR and different format conversion. Archiving and document retention are pretty big with emphasis on the compliance with the various laws. This leads to bloated products that the customers find hard to use and hard to fit into their process and workflow.
I heard of effort by law firms trying to implement content management systems but couldn't because of diverging requirement. At the end just threw the printed PDF into the system and called it for the day.
I heard of contract version management system, just to track the changes to the text of a contract, which was pretty successful because of focused effort. Contract can have numerous versions during negotiation and small changes can have huge impact.
What we need is a system with a small well defined feature set focusing only on the version control of text documents. Outsource the format conversion, OCR, index and search work to other systems.
You are absolutely correct. What typically happens is a company will bring in a focused solution like a contract management system. Because of its focus, it is able to do its job pretty well.
As that tool is successful, people will start thinking, "I sure wish I could do that with my [Word docs, Photoshop files, video files, etc]," and they start looking. Then they find Content Management and think they've found the perfect solution (and it really does sound good on paper).
But there are three fundamental problems: Unlike the contract management system, you generally don't use the CMS to create or edit documents[1], so you always have a point of impedance between the authoring and the management. Now you are relying on people to "do the right thing", and the right thing isn't the easiest thing.
The next problem is managing versions of the documents gets ugly and confusing pretty quickly. Most file formats we use today don't diff well, so the benefits of e.g. seeing just the changes from v2 to v3 are hard-to-impossible to implement.
The final problem is the content lifecycle of most documents is very fluid. Whereas a contract has a well-known lifecycle with a point in time that it is DONE (e.g. the contract is signed) and a well-known set of approvers (companies generally understand their money-spending approval process well), most documents people interact with follow very ad hoc processes. Invariable, people try to build formal processes out of those ad hoc processes, and people get frustrated. Given the first problem (authoring outside of management), people can easily make an end-run around the tool, perhaps putting a document into it only when they absolutely have to.
Anyway, I could go on for a long time, but my take-away from my experience in content management is to solve small, well-defined problems and forget about the siren's call of "all our documents managed in bliss" because it won't happen.
1. Like contract management, web content management tends to be more successful, because the authoring environment is usually the management environment.
When nailing down an RFP proposal, for example, the technology is the easy part. Distributed ownership of documents, or people changing the wrong version is the hard part. (And drives me nuts!)
What made "personal" computing possible was being able to do your own thing. What makes content management difficult is learning to do what fits in with what other people in the organization are doing. Human interpersonal behavior problems are often particularly hard problems to solve by software, because the first issue is getting people to use the software at all.
Define "better" such that subjectivity is eliminated. People have different desires, different habits, different mental models of the world. One man's "better" is another man's "wtf is this pile of dren?"
But, decisions are fixed entities, a decision is made by the court and handed down, stat. The decision doesn't change, a court can sit again and make a new decision (eg rescinding or amending the former decision) but the former decision still stands, as is, as the decision that was made.
If post-facto amendments aren't substantive then they're unnecessary, if they are substantive then they shouldn't be made without the court sitting and issuing a further decision. Seems logically that amendments should never be made; clarifications might be issued later but the decision as handed down to the parties in the proceedings should stand unaltered.
In the future I imagine this will be the case, and official versions will be indicated by a published MD5 hash, etc. As for why it hasn't happened already . . . why does the web still run on JavaScript, a language that was obsolete the day it was designed two decades ago? Even within the tech industry, tooling moves at a glacial pace.
We'll get court opinions stored in version control when we get a generation of judges that grew up with word processors with integrated version control. As it stands, version control isn't even well-implemented in mainstream word processors.
As it stands, version control isn't even well-implemented in mainstream word processors.
Maybe we should be teaching version control first when we introduce students to word processing. If they know they can always go back to an earlier version and compare changes, they might be more willing to explore and learn faster.
> official versions will be indicated by a published MD5 hash
That would be proof positive to me that they have no intention of leaving the documents unchanged. MD5 has been unusable as tamper-proof signature for a long time now.
Although MD5 has known collision issues, using an MD5 collision to alter the text of the document in a specific manner is highly unlikely. This is not as trivial as simply generating some random bits of data that result in the same signature when hashed.
In the use case where you want to change the document for your own purposes without leaving evidence that you've tampered with it, you would not be searching for just a single other file which generates the same hash value. You would be looking for another file which results in the same value when hashed, has the same format (text is easy, I suppose, but it's conceivable they could switch to a binary format at some point), makes grammatical and syntactical sense, and also contains the desired content that you are looking for (or some approximate.. the 'exact' desired content would result in a different hash in most scenarios).
That said, I agree that there are better hashing algorithms out there. Multiple signatures from several common hash functions could be provided for quick confirmation purposes while still making it relatively easy to validate quickly.
(Edit: Also, since you are concerned: I am not the downvoter)
I know it is not trivial but to start off with a known broken hash would be a big mistake in my opinion. There have been some pretty impressive demos regarding this.
A collision in under a minute would seem to me to qualify as 'broken' for all practical purposes of this particular has function for the purpose of proving a document was not modified after it was signed.
That that minute is still a substantial number of cycles is not too relevant given the importance of the documents that are being modified, it counts as a 'non-expense'.
You're not wrong, you're just putting the conversation on a pedantic tangent. I mentally replaced "MD5" with "a cryptographically secure hashing function" because even though I knew it was wrong hash to use, I know what the poster was trying to say.
Assuming the total computation power of the swarm is constant, it would take a 100% majority a year to rewrite a law that was passed a year ago. It would also be relativly easy to detect (noticing that you just resolved a gigantic fork, or that the law just changed), and easy to prove, as someone with a copy of the old blockchain could still prove it has a years worth of work on it.
Once this is done, you can explicitly blacklist the offending chain and get on with life.
This reminded me of an idea somebody else had of publishing everybody's votes in a federal or state election to the web. Everybody would get a unique, secret key right after voting with your voting choices. The machine would publish that key and the vote, but not your identity. You would then be able to, in the privacy of your own home, confirm that your vote has not been altered, while keeping your vote secret unless you choose to make your secret key public. Assuming enough people found discrepancies, a major revolt could be created in the event of the elections officials altering results in closely contested elections.
If only we could get a transcript of legislators' or government officials' conversations with influence groups...
This reminded me of an idea somebody else had of publishing everybody's votes in a federal or state election to the web. Everybody would get a unique, secret key right after voting with your voting choices. The machine would publish that key and the vote, but not your identity. You would then be able to, in the privacy of your own home, confirm that your vote has not been altered, while keeping your vote secret unless you choose to make your secret key public.
If you can prove you voted a certain way, that's a big problem in itself.
Estonia (which has internet based voting) solves this by letting you check your vote on a different device but for only a short time period.
The thinking is that even if someone has managed to compromise, say, your laptop (e.g. through a specially constructed virus) to secretly switch your vote to a different party, then they'd also need to be able to compromise your phone too to persuade an entirely different piece of software to also report your vote back to you wrongly. Not impossible, but a much harder task (especially as you'd need to manage to do it for everyone, or else there'll be a big outcry from the large number of people who notice a discrepancy).
Being able to prove you voted that way during that time period doesn't really matter, as the system already allows you vote as many times as you like, with only the last one being counted. (i.e. if someone tries to coerce you, or buy your vote, you simply vote their way, and then, when they head off to the next person, log back in again and vote the way you originally wanted.)
For those that wonder why: Imagine organized crime saying things like, "You will prove to us that you voted this way, or we will burn down your house".
Actually, when talking about possibilities for election fraud in contested places, threats seem much more common and plausible than simple votes-for-cash trade. It's more widespread in places with less democratic traditions, but USA history has also a fair share of examples.
The most common current method worldwide for "vote buying" seems to be done by large regional employers organizing voting as such for their employees (time schedules, transportation, lunch/party after voting), sometimes that can be very effective as strategic voting (i.e., bussing large numbers of voters to a different district). If the votes would be actually verifiable, then even without any illegal violence it'd simply mean near-permanent unemployment in that town for "wrong-party" people.
And that's about ordinary elections. For a different example, the recent referendum for Crimea joining Russia, according to their official results, had ~32000 people voting against. I'm not informed about what's happening in Crimea now, but I'm very sure that if I was one of them, I wouldn't want that vote to be verifiable - the hypothetical risks far outweigh any possible benefits.
Even "ordinary" elections have a similar risk to Crimea in some parts of the world - if I lived in the Basque Country in Spain, and voted for the (mainstream, right wing) Partido Popular I wouldn't necessarily want that to be published.
You don't even need to go to organized crime; there's your parents, boss, church, friends, help group (e.g. AA), etc. Essentially everyone that holds some influence over you.
Such a system should obviously only allow a voter to prove to themselves
that their vote was counted incorrectly. Some part of the secret would have to be retained in the voters memory in such a way that the voter can claim to others that they have voted in any way that they choose.
The goals "voters should be unable to prove their vote to vote-buying politicians/violent gangs" and "voters should have indisputable evidence they can take to the press if their vote has been miscounted" seem fairly contradictory to me.
I think the reason we don't do something like that is that an adversary (say, an unethical employer) could require you to provide your secret key to check that you voted a certain way.
Besides, we already have quite good protocols to ensure verifiability of votes: Put what you voted for on a piece of paper, and drop it in an urn. Allow observers to follow the urns everywhere, and observers from all parties to be present and take part in counting.
It's so effective that the first thing people do when they want to rig votes is to try to take away the paper and/or the observers, sometimes with threats of violence.
If people want quick results, while retaining the benefits of paper ballots with a proven provenance, we have the easy solution: Electronic voting where the machine prints out what you vote for, and ask the voter to confirm what was printed is what they voted on, and have the voter put that printed receipt in an urn like before. Then you can have near instant results from the machines, and can still more slowly verify a sufficiently large random sample of urns of paper receipts to ensure the numbers match.
It doesn't seem to be in any way related - the system described in your link tracks the ballots and "proves" (actually, reports) that they were counted.
It, at least as described, doesn't in any way allow to verify if that vote was counted as you intended, it's a proper closed vote with all the related assumptions about trust and need to physically monitor the voting and counting to prevent fraud.
the votes are prime numbers that are multiplied into a composite number. to verify your vote, divide the published composite by your prime twice. If it shows up with an integer remainder after the first division, your vote was counted at least once. After the second division, it was counted multiple times. Non integer for the second division, only counted once.
Nice piece of work. It would be cool if you could OCR the text out of the pdfs (perhaps using ocrad.js) and push the text in as a GitHub commit. In that way, you would have a full history of all changes to a document.
David w/ the Participatory Politics Foundation here, we created & ran OpenCongress from 2007-2013, and now it lives with the Sunlight Foundation. I wrote about version control for legislation here on OC Blog in May 2012: http://goo.gl/Ll2rDs. I still think it's possible on a site like OpenCongress or GovTrack, it's possible on GitHub, and this non-profit is working on it directly w/ their MADISON platform for text annotation: http://opengovfoundation.org.
It's because the slip opinion (the one posted on the court's website) is not canonical. The canonical version is what's published in the U.S. Reports.
The Supreme Court has a whole protocol for this: http://www.supremecourt.gov/opinions/slipopinions.aspx ("Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and--one year after the issuance of that print--by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.")
The GigaOm article is garbage: "Supreme Court opinions are the law of the land, and so it’s a problem when the Justices change the words of the decisions without telling anyone." They're trying to generate page-views by making it sound like the Justices are going back and changing the official record, and are being thwarted by a coder who swoops in to save the day.
In reality, what you have is a tool to see what changes between the "release candidate" and the "Gold Master." Still interesting, even without the manufactured drama.
It's much more important than that. Yes, the protocol says it's only for errors/deviations. In practice, the changes can be more substantial.
The vast amount of legal, scholarly and media attention to an opinion happens on release day. When words change after release day, the public deserves to be immediately clued in to that -- even if many/most of them end up being typographical.
Quite its "the words on the paper" I once spent an hour discussing with colleagues on a business committee (plus getting expert opinions from two officials) as to the exact meaning of "the" in a motion - to rule a motion in or out.
If the supreme court need to make changes it should be shown as a omnibus document with the changes indicated and I trust the justices will look at the revised motions and vote on all! the amended judgements.
If they don't they should be impeached for malfeasance in public office and replaced.
There's a non-binding vote in conference, and at that point the majority chooses a justice to write the draft opinion. The justice who write the opinion circulates it among the justices for recommended edits. That basically becomes the slip opinion.
Other justices can write concurring or dissenting opinions as they wish. The justices and change their mind at any point until their judgement is officially handed down. So (at least in my understanding, someone please educate me if I'm wrong) there is no vote on the majority opinion itself, but rather on the case and the general points of law.
Therefore there's no reason the other justices would feel the need to vote on revisions.
But as stated, it's well-known and well-documented that these opinions aren't finalized and what we see at first is just a draft. Frankly there's no one to blame but ourselves and the media for thinking otherwise. I don't really have any problem with this behavior - as the NYT noted the changes are noted, just not as publicly as they should be.
And, in general, the Justices don't even write the opinions. According to the book 'The Brethren' by Bob Woodward, the bulk of the text of opinions are often written by clerks and reviewed by their supervising Justice.
Isn't a like a judge making an initial ruling and then the next week saying oops that death penalty thingy I have changed my mind?
And if you are making revision you need to publish the actual changes not just slip out a new version ie para A3 delete last sentence and replace with "foo bar".
Dont they cover that at "judging school" to quote the E L wisty aka the late Peter Cook
1. The rulings of the case don't change, the explanatory comments and reasoning gets further edited after the ruling - any changes there would affect decisions in future cases, but not for this one.
2. After they're finally published in U.S. Reports, any changes are published as proper errata. However, the 'post on the website' is of a draft that's after the ruling but much, much before publication.
All this article is about tracking the changes that get made before the U.S. reports version is published, and the 'slip' version is essentially described as "this is a pre-release draft, read if you want but the following publications may be different and that will be binding, not this one". If you read a draft of a novel, do you expect the released version to include an errata of things that were changed from that draft?
I would expect the highest judicial court in the land to ONLY publish final documents any drafts should be between the justices and the clerks. Why do I say this to stop the risk of media jumping to conclusions and getting the wrong end of the stick and thus making the supreme court look like amateurs.
Certainly when I have been involved in formal parliamentary style work we would never publish a draft.
Well that's a lot more reasonable - but it seems like they should just hold off on publishing the thing till they finish editing it. The system seems a bit sloppy
A Supreme Court opinion has several functions: 1) it resolves a real live dispute between two parties; 2) it gives guidance to the other federal courts; 3) it serves as a statement of the law to the public.
For (1), you want to publish immediately, because the parties have already waited a long time to get the dispute resolved. For (2), you want to publish quickly, because the federal Courts of Appeal need to implement the new guidance in other cases, and may be holding cases that pose the same question pending the Supreme Court's resolution. For (3), you want to have enough time to polish something, because it will be referenced for decades to come.
The system of publishing a bench opinion, a slip opinion, and a final published opinion reflects these conflicting needs.
Approximately nobody in the US would rather wait for the final binding version of the opinion, for avoidance of uncertainty, than read about the bench opinion on CNN. The very few people who care about this issue already know they need to watch for the preliminary and bound opinions.
The SCOTUS website itself is excruciatingly clear about these points:
The opinions published immediately after the announcement of a decision are marked as draft and subject to change. They then undergo editing, until the official final version gets published in the U.S. Reports. (The NYT article describes this).
I would be floored, completely bewildered, and stupefied beyond belief if any Congress other than the 113th thought they had the ability to legislate what the Supreme Court can write in its decisions.
Having said that, I expect such stupidity to be debated in committee by the end of next week.
You might want to read up on past Congresses since the 113th is actually pretty tame compared to quite a few of the others. Speaker O'Neil could get quite vicious and he wasn't even the most powerful Speaker.
> I would be floored, completely bewildered, and stupefied beyond belief if any Congress other than the 113th thought they had the ability to legislate what the Supreme Court can write in its decisions.
There's a difference between legislating what the Supreme Court can write in their decisions and legislating the manner in which the Supreme Court must publicize its decisions and changes to them.
And the issue, to be clear, here is the latter, not the former.
> Your argument might be stronger if it suggested a source of authority for Congress to pass such a law.
The most obvious The elastic clause of Article I, Section 8 (insofar as las specifying the manner of publication of Supreme Court decisions are "necessary and proper" for carrying into execution the judicial power specified in Art. III), and, additionally (for most decisions) the appellate jurisdiction clause of Article III, Section 2 (which limits the court in such cases to operate "under such regulations as Congress shall make".)
Anyway, I never argued Congress could make such a law anyway, I argued that they hadn't (thus the current behavior wasn't illegal), and that there was a substantial difference between regulating what the Court can write in a decision (substance) -- which someone suggested would be ridiculous -- and regulating how the Court must publicize decisions (process). I didn't say that either restriction would necessary be within the power of Congress, just that they were substantially different things.
For the reasons cited earlier in this post, I suspect that the kind of regulations that would be relevant to this discussion on process would be within Congress power, but that's somewhat beside the point. I mean, if Congress can't make a law regulating the process, that would be an even stronger form of the "Congress hasn't made a law" reason for it not being illegal.
Well... Congress has passed laws impacting venue decisions, and Congress can change the composition of the courts, for instance by adding new judgeships. Congress also creates special administrative courts like FISA.
It would have been clearer for me to say that judicial branch does its own administration, which includes rules on everything from procedure to publication of court decisions.
" ...You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything.' But the plans were on display...' o n display? I eventually had to go down to the cellar to find them.' `That's the display department.' `With a torch.' `Ah, well the lights had probably gone.' `So had the stairs.' `But look you found the notice didn't you?' `Yes,' said Arthur, `yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard".'
In my case against Ben Mezrich, Judge Collings cited WikiAnswers (wiki.answers.com) to define the term non-fiction. Except that he cited a page on WikiAnswers that was off by one character from the page he intended to cite. I didn't know this, and assumed he'd just made everything up, since nothing matched what he quoted. It took me over a year--after appealing based in part on his error--to accidentally realize that the link was bad.
He still refuses to admit that he made any sort of mistake.
I filed a Motion for Reconsideration, which you can find here:
Other judges refuse to cite wiki citations at all. When I brought the issue to the attention of the First Circuit as misconduct, they dismissed it, carefully refusing to use the word "wiki" in their public Orders because that might admit that judges cite wikis whenever they feel like it. I appealed; they refused to use "wiki" in the Order once again. Instead, they refer to an "on-line source."
Wiki citations can be edited by anyone, including adverse parties, during or after proceedings, presenting the exact same problem as silent edits in opinions after they have already been issued. Whenever there is a better source they should never be cited. The behavior of Judge Collings, the First Circuit, and the Supreme Court does not inspire much confidence in the Courts.
I'd have to agree that randomly finding something on the Internet proves little. However, for a definition of a term like "non-fiction," you're not necessarily looking for an authority, but rather just something that makes sense. (Even if you found a definition in Webster's, it carries no legal weight at all. Nor does WikiAnswers.)
Your concern about changes seems valid. Maybe this could be solved by actually copying the original cited material so the original could be viewed later by interested parties? I'd hate to make the entire Internet off-limits to legal authorities just because of the potential for change.
The OED is pretty widely regarded as an authority when it comes to defining terms. It doesn't tend to change very much over time for any given term, which is important, in contrast to a wiki.
In my particular case, the wiki had three different definitions for "non-fiction" all written by different anonymous authors, all of which change frequently. perma.cc is a project to image hyperlink citations, but it doesn't stop judges from just screwing up.
If you're interested in this, you may also want to check out https://www.courtlistener.com/, a service that regularly crawls court websites for opinions. Not sure if they show multiple versions though.
CourtListener sometimes has multiple versions depending on the particular court and the case. Many courts will post opinions, correct typos (and who knows what else), and then re-post them later, as new opinions or just edits.
There's basically no consistency whatsoever. Courts don't even write their case numbers the same way from district to district, let alone format their opinions the same.
This smells of mitigation and not patch. Simply require the supreme court to publish all their opinions, rulings and changes so that they are available to the public.
The NYT spent a whole high-profile article highlighting the issue of a silently shifting court record. This completely removes the "silently".