The Role and Rule of Law

If paratexts alter the relationships among judicial institutions, they are likely to transform, as well, our traditional jurisprudential tenets, such as the role of precedent and the tradition of supremacy­of­the­law.

What if, over time, appellate courts candidly admit an obligation to function as a second trier­of­fact and, thus, to review and evaluate the trial context as it is enframed in paratexts? At the very least, this duty would mean that certain basic concerns of the trial court, particularly the admissibility and use of evidence, would become central concerns for the appellate court. Paratexts would change the very face of the case record on appeal. Electronically recorded depositions, confessions, day­in­a­life accounts, wills, contract negotiations, and trial proceedings would inevitably bring a more contextualized view of the story behind the case to the appellate court than the print record ever could. So long as the appellate court elects to view paratexts, it will be difficult, if not impossible, for it to remain immune from their inviting contextual messages. Consequently, paratexts raise a critical concern: whether the appellate court can proceed effectively with its print­based charge to systematize and abstract principles of law, when it is faced with a myriad of audio­visual narratives.

Currently, our society regards the appellate process in Gutenberg terms. The print record, with its tightly packaged set of facts, enables the reviewing court to remain detached from the trial context; this ability permits the court to articulate systematic and abstract principles of law. When judicial review is tailored to discrete, life­like contexts, however, real­world events cannot be as readily reified, objectified, classified, and then "rule­ified." Accordingly, as context invades the text, a case rule will literally become the rule of that case. The reviewing court may then come to conceptualize an appeal in electronic terms: The audio­visual record, with its relatively expansive set of facts, invites the reviewing court to become more involved with the trial context, thereby encouraging non­categorical and particularized narratives of law.

"In a period of rapid change," Professor Lawrence Friedman writes, "the older theories of legal legitimacy, the meta­human theories, cannot sustain themselves." ²⁰⁷ Consistent with this general proposition, the era of the paratext moves law further away from a Gutenberg jurisprudence and closer to a gestalt jurisprudence, ²⁰⁸ one premised on the notion that a case cannot be severed from the entirety of its context. Although the closure principle may mitigate the pervasive effect of paratexts, adjudication within gestalt jurisprudence is likely to be driven more by equitable considerations than by formal rules. As the force of precedent wanes, the core values of Gutenberg jurisprudence­predictability, uniformity, and universality of law­ will become increasingly irrelevant. ²⁰⁹