DISTORTED DIGITAL DATABASES AND THE CONSTRUCTION OF LEGAL KNOWLEDGE

This article examines whether the sporadic publication of decisions in family law cases, which is customary in most common-law jurisdictions, even in the digital era, serves the interests of the public, the legal profession, or the development of knowledge in family law. The paper includes a theoretical overview of the debate surrounding the status of published versus unpublished decisions within the context of the construction of legal knowledge, a summary of studies examining the differences between digital databases and actual court rulings, and the particular policies and practices of the publication of rulings in family law in a number of common law jurisdictions. The empirical research in this study is based on a content analysis of a sample of 1, 373 decisions from the family court archives in Israel and 1, 145 decisions from five databases over the same seven-year period. We found that in general, not only was a very small percentage of decisions regarding family law published in the commercial databases, but the image of family courts that is reflected in the databases is distorted on several dimensions: Courts are depicted as more confrontational (adversarial) than they actually are; family disputes in the databases address more complicated issues than actual family court litigation; published decisions are longer and more complex than actual court decisions; decisions are more beneficial to women in the databases than they are in reality; there are a majority of male judges in database decisions, despite the fact that in practice family court judges are mostly female; and judicial work in the periphery is under-represented. This study contributes to understanding the dynamics of the publication of rulings and the pitfalls of the partial accessibility of legal decisions in a particularly challenging and constantly evolving area of law. If the distorted version of family litigation and case law that appears in the databases constitutes the knowledge that professionals have about family law, one can only speculate about the effect of this biased view on future practice and judicial decisions in this area.