The Closure Principle

It would be erroneous to assume that the advent of paratexts is synonymous with their automatic acceptance by judicial institutions. The very institutional efficiency rationales for the division of trial and appellate functions provide ample warrant for viewing paratexts with a critical eye. Furthermore, the importance of safeguarding the supremacy­of­law doctrine, discussed in the next section requires the legal system to be wary of the force of paratexts. This skepticism finds expression in what we label "the closure principle."

The perpetuation of a print­based legal culture depends on its ability to manage and control context. In an electronic era, legal institutions can achieve such control in two general ways. First, they may exclude the paratexts as legally irrelevant or inflammatory. Alternatively, they may marginalize their force by "textualizing" them. ²⁰⁶ More precisely, because paratexts are texts, closure operates by re­enframing them. This "re­enframing" is what we mean by the closure principle.

Closure can occur by technological or institutional methods. Technological closure occurs when paratexts are organized and made systematic by electronic means, much as indexes, tables of contents, and glossaries, did for print. For example, the ability to store digital information on electromagnetic tape and the integration of computer and video technologies permit electronic indexing and categorizing of events on audio­video recordings. Technological closure enables the bench and bar to exercise a significant degree of control over electronic information and to create a hierarchy of relevant events. Particular episodes, or even fragments of an episode, might be pinpointed, extracted, ordered, and collated for viewing at trial or on appeal. As this occurs, paratexts begin to resemble their print counterparts.

Additionally, institutional closure occurs when the judiciary prescribes rules to govern the admissibility and use of paratexts. For example, a court might fashion new evidentiary rules requiring the exclusion of "irrelevant" or "prejudicial" matters from paratexts, or the elimination of certain categories of paratexts altogether. Institutional closure could easily result from the judiciary's reluctance to abide the administrative time and expense required to process paratexts.

Understanding the power of the closure principle, the law may apply it vigorously to preserve the appellate­trial court dichotomy. Should it so proceed, typographic law, via the closure principle, may succeed in keeping the paratext at bay. The "seeing is believing" principle, however, will persistently assert its province in the law. The resulting conflict between these two principles will push the law beyond the Gutenberg consciousness, but just how far and how fast remains to be seen.