LAW REPORTING IN THE UNITED

STATES.

At about the same time the lord chancellor, deprecated the alarming condition of affairs, in an

ASSOCIATION.

To the American Bar Association:

The special committee appointed at the last annual session of this body, to ascertain the condition of law reporting in this country and report thereon, entered upon its duties by the selection of Frank C. Smith, one of its members, as secretary, with a view to gathering and collating facts and statistics upon the subject assigned.

The secretary upon ascertaining the names and residences of the reporters of the Federal and State courts, put himself in communication with them by circular letter, to which a large number of responses were received. These communications and suggestions have been tabulated by him for the use of the committee, and are most interesting and valuable. The schedule is therefore annexed hereto, and made a part of this report.

The Secretary has also prepared a table showing the number of cases reported from the courts of appellate jurisdiction in this county, from June 1, 1894, to May 31, 1895, and the number of times each court has cited its own decisions and the decisions of other States and of England.

This table is also attached as bearing upon the question of accumulation of the Reports in connection with the citation of the earlier authorities.

It is to be regreted that the continued absence of Judge Dillon from the country, prevents him from uniting in this report, since he has manifested very great interest in the work of the committee, and given valuable assistance through his wide experience and thorough acquaintance with the subject.

The multiplication of the law reports has attracted attention of the Bar since the day when Coke lamented the existence of so many as fifteen volumes of reports, besides treatises and statutes. In Bacon's time, when the reports were some fifty or sixty in number, the evil was so great in his opinion, as to require a "recompiling of the common law."

In the early part of the century, Bentham likened the condition of affairs to the books of the Roman law before they were digested by Tribonian. "A mass," he says, "the contents of which defy the industry of an ordinary lifetime to master."

It was on two occasions a little more than thirty years ago, resolved by the English bar, and those interested in the amendment of the law, that the system of reporting, editing and publishing law reports, required amendment, and "that the reported decisions should be consolidated, and their undue accumulation for the future be, if possible, prevented."

the immense and growing number of the reports, as a reason for revision and condensation.

The matter was called to the attention of this association, in an address by Judge Dillon in 1884, followed by a paper by him on the same subject two years later, at which time a resolution was adopted, which referred to "The evils of the great volume of Judiciary Law," deeming it unwise, however, to interfere with the unlimited publication of opinions. (Report Am. Bar Association, 1884, p. 223; 1886, p. 257, 312.)

In 1891 in a paper read before the New York State Bar Association, by another member of this committee, it was said, "The necessity for reform is apparent and urgent. The evil is a serious and unfortunately a growing one," (Report New York Association, p. 178.)

The committee of that body appointed at that time, say in 1891, referring more particularly to the duplication of reports, "It has been a matter of discussion with the profession for a considerable period, and the lapse of time and the multiplication of reports only tends to emphasize the necessity for relief from the burden of miscellaneous reporting." (Report New York State Association, 1891, p. 101.)

The matter has been taken up recently by the Virginia Bar Association, and your committee is in receipt of a copy of a carefully considered report on the subject presented at the late meeting of that body, in which the calculation is made that a lawyer who devotes three hundred days in the year to the reading of the reports published in the United States must read two hundred pages every day in order to complete the work.

It may be said at the outset, in view of the decided expression of opinion by this body by the resolution of 1886, that the matter must be dealt with and remedied in some way other than by legislative restrictions of absolute freedom in the publication of adjudged cases.

The propriety or wisdom of restricting publication of the opinions of the courts has therefore not been considered as an open question by your committee, but as settled, in favor of the widest liberty to the publisher. This accords alike with the sentiment of the bar and the constitutional provision in very many States.

It is believed that the following are the more important and vital considerations, relative to the

matter referred to.

First. The unnecessary duplication of the same matter in different series.

Second. The advisability of the adoption of a

matter of convenience. Beyond that, however, this view is taken because of the permanence of a series established and sustained by legislative action and which receives the sanction of the courts by the appointment of the reporter and revision of his

work.

Still further under such conditions, the work of the Official Reporter if honestly done, should be much superior to any report owing its existence to private capital.

Not only is the reporter compensated and furnished suitable assistance, but the State usually intervenes to see that the report is published and placed on the market at a price scarcely compensating the cost of printing and binding. On the other hand, the publishers of reports other than those in the Official Series, are entitled to, and are here given the credit of having brought about the present condition of affairs, under which the Official Series of the Supreme Court, and of several State Courts, are furnished to the profession with great promptness, in weekly or semi-monthly parts, at a very reasonable price. It was not unusual a few years ago, to find an Official Series from one to three years in arrears, a condition not entirely

creditable to the derelict officials.

This state of things brought into existence the unofficial series, which in turn forced the Official Reporters to energetic and prompt issue of the volumes in arrears, and there seems to be no difficulty, at this time, in their keeping abreast of their work.

In order, however, that the Official Reports may meet the demands of the profession, it is doubtless necessary that they should publish all the reports of the Superior Appellate Tribunals, in order to meet the demand for all the available decisions. With such authority and supported by the resources of the State, it is not too much to say, that if the Official Reporters of the Court show the energy, enterprise and sagacity of private business houses, in preparing and issuing their reports, there will be little demand for anything except the official volumes. Any reporter competent for his work should be able to do this, at least as well as can be done by any other person, without his facilities, and with the public treasury virtually at his call, he should certainly be able to perform it speedily, if not it would seem that his resignation should be promptly accepted by the Court from which he hold his appointment.

tageously used for circulation both in pamphlet and bound volumes throughout neighboring jurisdictions in co-operation with others, forming thus & combination of the series of the official reports of several States under a single management, the only additional expense being that of publication.

This method would not only be a convenience to the bar by furnishing them the official reports of other States at a very moderate price, but should be a source of income to the reporters as well. It is quite certain that such a combined series could be furnished at a very moderate price for the reason suggested, and it is equally certain that, everything else being equal, lawyers much prefer the official series.

THE WORK OF THE REPORTERS.

It is manifestly impossible, to maintain an ideal standard, for the work of the large number of reporters and their assistants, engaged in the preparation of nearly, if not quite, one hundred series of reports, State and Federal. There must necessarily be varying degrees of excellence, and it would be hypercritical to insist upon even an approach to perfection in the details of their duties.

What is most obvious, and a just ground for criticism, is a lack of the spirit and enthusiasm necessary for success in every department, and this is most apparent in the want of uniformity, in the method and character of the reports, a failure to act in pursuance of a well considered plan, and to study and follow approved and scientific methods, adapted to present conditions, for it must be admitted, that reporting as a science has advanced but little within the century.

It is true that there exists in some few instances an apparently deep seated prejudice against clearness and simplicity of statement, an unwillingness to present the important facts, on which the discussion turns, and an anxiety to enter into minute details as to matter of no importance, except to the parties, and as to them of doubtful consequence, but it is their misfortune, that they are occasionally required to make sense out of an unintelligible statement or to reconcile with established rules, a chance conclusion which is with difficulty made to bear such a construction, and it must be conceded, that as to those matters the learned members of the court are much the greater sinners.

possible, but comparatively easy of accomplishment, by careful analysis, and diligent study of the best reporters (and their name is legion) to extract a uniform rule, or set of rules, as to treatment of the head note.

It is certainly safe to follow the plan recommended in the preface to Douglas Reports, "to state the point as a general rule or proposition," nor is there doubt of the rule laid down by a writer in the Law Quarterly Review, that, "if a case affords an illustration of a well-known principle, the profession does not gain by that principle being buried in a mass of facts," although a very recent writer ou the subject says: "The syllabus must state not only those facts which furnish adequate premises for the conclusions reached, but every fact which may distinguish, the instant case from another, which would apparently fall under the same general principle."

selection of titles and subtitles, which are not likely to occur to the mind of any, except an intellectual athlete, while his memory seems to utterly fail him in recalling those titles, likely to be in the mind of the practicing lawyer.

Whatever may be the fact as to the possibility of applying scientific methods to the drafting of the head note, there can be none as to the possibility of a system of indices, which shall be uniform and well understood by the profession, and this uniformity should extend not only to the indices to the reports, but to the digests, State and National, so that with a system of cross references, a lawyer may reasonably expect to find the same subject matter under the same title, in the different reports and digests.

The variety in type, binding and mechanical execution of the reports would scarcely merit special attention but for the fact that, as a rule, the larger the type the smaller the page, and cheaper the bind

So simple a matter as placing the number of the volume at the top of the page, so as to save turning the book to examine the back while holding it open to write out a citation, escapes the attention of

Professor Wambaugh holds the duty of the reporter to be, "to determine by his own study, the proposition of the law involved in the case, and not simply to extract from the opinion a few apparently pertinent sentences."

It is quite certain too, that a very brief statement of the points involved introductory to and independent of the head note, is a matter of great convenience, while appropriate catch words in a different letter, showing the subject treated by each paragraph, will save much labor to one examining a large number of cases, and in this connection, may be urged so far as possible, at least when the principles decided are of substantially equal importance, the desirability of stating the questions decided in consecutive order, following that in the opinion, since it frequently, in fact almost always happens, that a case is consulted for the rule on a specific point, and as in preparing a brief, counsel necessarily examines a number of authorities, time is an important element, not to speak of the annoyance of searching through pages of a lengthy opinion to find that the point stated in the last paragraph of the head note is disposed of by the court, in the first sentence of the opinion.

A difference in method to a still greater degree, is found in the manner of preparing the index. This too presents a lack of uniformity, which causes a loss of much time, labor and patience, since the imagination of some reporters seems to revel in the

style of binding, by which the volume remains open at any page, is a feature of one of the leading unofficial series which commends its mechanical execution and evokes a wish that the good example may prove contagious.

The examination of authorities is so important a part of the work of a lawyer that every effort should be made to lessen both the mental and manual labor connected with the search for cases in point, and while the details of mechanical execution are apparently unimportant, they can be readily remedied, and the most intelligent and painstaking effort should be made to embody in the head note a clear, concise, correct statement of the legal rules determined by the opinion, and the index so arranged as to afford the worker complete facilities for thorough investigation.

THE MULTIPLICITY OF REPORTED CASES.

The enormous increase in the number of the reports is, upon the whole, by far the most serious aspect of the question in hand. It is also the problem most difficult of solution, since the causes are deep seated and irremovable, being connected with the foundation of our system of law and form of government.

The evils from this source have their origin,

First. In the doctrine Stare Decisis, the corner stone of the common law.

Second. In the number of independent appellate juridicatures which administer the law among English speaking people.

Third. The rule recognized by organic and statute law, authorizing the free publication of the decisions of the courts.

Coke says "the reporting of certain cases or examples is the most perspicuous course of teaching the common law."

Hale described the unwritten laws as having acquired their binding power by a long and immemoral usage, and by the strength of custom and reception in the kingdom," and the late lord chancellor aptly described the situation in these words: "Where the judges have a new case before them they do not profess to arrive at the law by reasoning, by theory, or by philosophical inquiry, but by searching among the records of former decisions, for cases which are supposed to be analogous to the case before them, and they derive from these analogies the rules which they desire for the determination of the particular case."

The doctrine, as stated by a recent writer, is: "In the court pronouncing a decision, and in the courts subordinate to it, a decision, so far as it establishes a doctrine, is a precedent of imperative authority until it is either reversed or overruled." Thus "the custom of the Kings Court is the custom of England, and becomes the common law." This view, so radically unlike that prevalent on the continent under the civil law, is, and so long as it retains its position must be, fruitful in reports of opinions handed down by the courts, since such decisions constitute not only valuable precedents applicable by analogy to like cases, but embody the absolute rule of law which must be applied to the case in hand whenever the facts bring it within the principle theretofore decided.

The presentation of a cause at the bar is regarded as incomplete, and the attorney considered as remiss in his duty, if even the most elementary propositions are not supported by a citation of authorities, even though it involves nothing more than the interpretation of a rule of court, or the construction of the most unimportant local statute.

The term "case lawyer" is frequently used as a term of reproach for a laborious practitioner, but it is nevertheless true that principles are to be found in cases, and are frequently found applied to a similar state of facts. 64 Hence the case lawyer" wins cases because he has examined the books thoroughly, first, to find a case on all fours, then to find one where the rule is established as he contends; these failing him he looks for an analagous rule which may be applied to the case in hand, and finally, if a prudent man, takes pains to ascertain whether there is any aid or comfort given his adversary by a decision, dictum or query.

It is not at all clear but that it would be highly beneficial to the profession, the bench and the

client, if the fate of the Alexandrian library should befall very much the larger portion of the reports of adjudicated cases in all English speaking countries, but in place of such fortune, we must contemplate the multiplication of reports in fortyfour States, in the federal tribunals, in England, her provinces and dependencies. It is in the large number of different and independent judicatories existing in this country that we find most of the difficulty as to the mass of authority emanating from the courts. Very many of the States have more than a single appellate tribunal, and these added to the reports of the Supreme Court of the United States, the Circuit Courts of Appeal and the several Federal Circuits, furnish a volume of legal literature which is appalling.

When we observe that the official reporters number more than sixty, and that in a State in which three official series are issued, eight volumes a year scarcely suffice for all the causes in a single court, we need not be so much surprised at the number of reports as, that under such circumstances, the common law retains its distinctive features and adapts itself so readily and wonderfully to such extraordinary conditions.

Add to these considerations the constitutional right of every citizen to cite and publish the decisions of the courts and we have no occasion to wonder at the number and extent of the law reports in this country.

There is to be found in the suggestions made abundant reasons for the publication and the preservation of such judicial decisions as will serve to aid in the determination of questions likely to be litigated, but this is also the strongest possible argument in favor of writing brief opinions, or none at all, on questions of no interest to the profession or the public, and it is such questions that constitute a very large proportion of the business of the courts.

The books are crowded with discussions as to the interpretation of purely local statutes, and with the iteration and reiteration of well settled principles, applied sometimes to peculiar facts, but it must be remembered that these questions, although of no general interest or usefulness, were of great importance to the parties, have been argued by able counsel and taken much of the time and attention of the court, and thus the reasons for the decisions naturally find their way into an elaborate opinion.

Most to be deprecated perhaps is the controversial opinion written not to expound a legal principle, but to persuade other members of the bench, too obtuse to appreciate fully the reasoning, or to yield readily to the logic of their associate.

In some jurisdictions, notably in the New York Court of Appeals, the judges have come to regard