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LAW REPORTING IN THE UNITED At about the same time the lord chancellor, de STATES.
precated the alarming condition of affairs, in an REPORT OF COMMITTEE OF THE AMERICAN BAR address upon the revision of the law, and urged ASSOCIATION.
the immense and growing number of the reports, To the American Bar Association :
as a reason for revision and condensation. The special committee appointed at the last an The matter was called to the attention of this nual session of this body, to ascertain the condition association, in an address by Judge Dillon in 1884, of law reporting in this country and report thereon, followed by a paper by him on the same subject entered upon its duties by the selection of Frank C. two years later, at which time a resolution was Smith, one of its members, as secretary, with a adopted, which referred to “The evils of the great view to gathering and collating facts and statistics volume of Judiciary Law," deeming it unwise, upon the subject assigned.
however, to interfere with the unlimited publicaThe secretary upon ascertaining the names and tion of opinions. (Report Am. Bar Association, residences of the reporters of the Federal and State 1884, p. 223; 1886, p. 257, 312.) courts, put himself in communication with them by
In 1891 in a paper read before the New York circular letter, to which a large number of responses State Bar Association, by another member of this were received. These communications and sugges- committee, it was said, “The necessity for reform tions have been tabulated by him for the use of the
is apparent and urgent. The evil is a serious and committee, and are most interesting and valuable. unfortunately a growing one." (Report New York The schedule is therefore annexed hereto, and made
Association, p. 178.) a part of this report.
The committee of that body appointed at that The Secretary bas also prepared a table showing time, say in 1891, referring more particularly to the number of cases reported from the courts of the duplication of reports, “It has been a matter appellate jurisdiction in this county, from June 1, of discussion with the profession for a considerable 1894, to May 31, 1895, and the number of times period, and the lapse of time and the multiplicaeach court has cited its own decisions and the de- tion of reports only tends to emphasize the necescisions of other States and of England.
sity for relief from the burden of miscellaneous This table is also attached as bearing upon the reporting.” (Report New York State Association, question of accumulation of the Reports in connec 1891, p. 101.) tion with the citation of the earlier authorities. The matter has been taken up recently by the
It is to be regreted that the continued absence of Virginia Bar Association, and your committee is in Judge Dillon from the country, prevents him from receipt of a copy of a carefully considered report on uniting in this report, since he has manifested very the subject presented at the late meeting of that great interest in the work of the committee, and body, in which the calculation is made that a given valuable assistance through his wide experi- lawyer who devotes three hundred days in the year ence and thorough acquaintarce with the subject. to the reading of the reports published in the
The multiplication of the law reports has at United States must read two hundred pages every tracted attention of the Bar since the day when day in order to complete the work. Coke lamented the existence of so many as fifteen It may be said at the outset, in view of the devolumes of reports, besides treatises and statutes. cided expression of opinion by this body by the In Bacon's time, when the reports were some fifty resolution of 1886, that the matter must be dealt or sixty in number, the evil was so great in his with and remedied in some way other than by opinion, as to require a " recompiling of the com- legislative restrictions of absolute freedom in the mon law."
publication of adjudged cases. In the early part of the century, Bentham likened The propriety or wisdom of restricting publicathe condition of affairs to the books of the Roman tion of the opinions of the courts has therefore not law before they were digested by Tribonian. “A been considered as an open question by your commass,” he says, “the contents of which defy the mittec, but as settled, in favor of the widest liberty industry of an ordinary lifetime to master.”' to the publisher. This accords alike with the senti
It was on two occasions a little more than thirtyment of the bar and the constitutional provision in years ago, resolved by the English bar, and those
very many States. interested in the amendment of the law, that the It is believed that the following are the more imsystem of reporting, editing and publishing law portant and vital considerations, relative to the reports, required amendment, and “that the re matter referred to. ported decisions should be consolidated, and their First. The unnecessary duplication of the same undue accumulation for the future be, is possible, matter in different series. prevented.”
Second. The advisability of the adoption of a
scientific and uniform method in the preparation of The question was brought before the Commission the reports.
to Revise the Judiciary Article of the New York Thiril. The increased and ever increasing number Constitution in 1890, but no action was taken until of reported cases.
the presentation of the matter to the Legislature in
1892, by the State Bar Association, as the outcome DUPLICATION OF OP ONS REPORTED).
of a paper read before it in the previous year. It is unnecessary to discuss, at any lengtlı, the One of the features of the legislation was the proevils arising from the publication of the opinions vision for an additional official reporter, and another in separate series. The item of expense to the authorized and directed the publication by the lawyer who desires complete sets of the reports of Supreme Court Reporter of all opinions handed even his own State is an important one, where there down in the appellate branch of that court. is no duplication. When the number is indefinitely While the legislation obtained was not all that increased, it becomes an unnecessary burden. When was desired, yet in connection with the active and to this consideration is alded the annoyance hearty co-operation of the reporters and publishers, of double or triple citations, and the not unimport- it has accomplished substantially all that could have ant item of convenience in arrangement of shelf | been brought about by the bill drafted by the Associaroom, we cannot but deprecate the very general du tion. Before the arrangement which resulted in the plication of both State and Federal Reports. present combined official series, eleven distinct sets
Under the conditions which exist in the mother of reports were issued in the State, in which opincountry, where reporting is, and always has been, ions were not only published over and over again, regarded as a perquisite of the bar, and official re but in some instances the same case in the same porters, as such, are unknown, we necessarily find court appeared in full in five different series. In the whole matter thrown open to private enterprise; addition the legislative acts consisted of one or two but in this country, where the advice of Bacon that volumes, the total expense being nearly $100 per “ The reporters be taken from the most learned counsel and receive a liberal salary from the State," The present arrangement includes three series, has been followed, and where the reporter is an Court of Apreals Reports, Supreme Court Reports officer of every appellate tribunal and compensated and Miscellaneous Reports, the latter containing the for his labor by either copyright or salary, the lat- opinions of inferior courts of record. Each of these ter ranging from $1,500 to $5,000 per annum, with reports is prepared by an oflicial reporter. These liberal allowance in many instances for assistance, three series, with the acts of the Legislature, known there would seem to be but slight inducement or as the Session Laws, constitute the combined series, opportunity for private reporting, except in the col published in weekly pamphlets at $30 per year, lection and annotation of authorities on special The bound volumes are also furnished at the subsubjects, or the selection of leading cases for ex- scription price without return of the pamphlets. amination and criticism.
In this respect, and in the fact that the opinion In England, the absence of the “Official Re- in all the courts, and the laws separately paged and porter " has, from the earliest times, been supplied prepared, as in the volume, are bound together by a barrister, who is an “Authorized Reporter" in weekly, and every decision prepared by the rethe sense that he is said “ to be more or less recog-porter, is thus brought down to date, this plan is nized by the court,” to the extent that “the judge believed to be an improvement on the English will often revise his judgment for the purpose of method. the report,” although he seemed in the earlier times The result has been most satisfactory to the proto have relied altogether upon notes or memory of fession, in that it enables the Bur to obtain all the the oral decisions of the judges.
opinions of the appellate and other courts of reThe authorized reporters," however, became so
cord very promptly and accurately reported in an numerous, five separate series being in existence, as official edition at a very moderate price. to lead to action by the bar, in favor of a series It has been thus far assumed that the official rehaving its sanction, which resulted in the publica-ports best deserve the support of the Bar, and are tion of the "Law Reports," the most important step entitled to recognition by the bench and the public. yet taken in the direction of promptness and This view has been taken in no spirit of antagonism economy, and which has formed the basis of the to the reports which owe their existence entirely to plan adopted in New York, to which the committee private enterprise, but for the reason that the protakes the liberty of calling attention, since some of fession does, and doubtless always will prefer an its members are somewhat conversant with the official series, for very many reasons, not the least method adopted in that State and the results of which is, that the majority of citations are to attained.
these volumes, and hence they are preferable ils &
matter of convenience. Beyond that, however, this tageously used for circulation both in pamphlet and view is taken because of the permanence of a series bound volumes throughout neighboring jurisdicestablished and sustained by legislative action and tions in co-operation with others, forming thus 8 which receives the sanction of the courts by the combination of the series of the official reports of appointment of the reporter and revision of his several States under a single management, the only work.
additional expense being that of publication. Still further under such conditions, the work of This method would not only be a convenience to the Official Reporter if honestly done, should be the bar by furnishing them the official reports of much superior to any report owing its existence to
other States at a very moderate price, but should private capital.
be a source of income to the reporters as well. It Not only is the reporter compensated and furn- is quite certain that such a combined series could ished suitable assistance, but the State usually in- be furnished at a very moderate price for the reason tervenes to see that the report is published and suggested, and it is equally certain that, everything placed on the market at a price scarcely compen-else being equal, lawyers much prefer the official sating the cost of printing and binding. On the series. other hand, the publishers of reports other than
THE WORK OF THE REPORTERS. those in the Otlicial Series, are entitled to, and are here given the credit of having brought about the
It is manifestly impossible, to maintain an ideal present condition of affairs, under which the Official standard, for the work of the large number of reSeries of the Supreme Court, and of several State porters and their assistants, engaged in the prepaCourts, are furnished to the profession with great ration of nearly, if not quite, one hundred series of promptness, in weekly or semi-monthly parts, at a
reports, State and Federal. There must necessarily very reasonable price. It was not unusual a few
be varying degrees of excellence, and it would be years ago, to find an Official Series from one to hypercritical to insist upon even an approach to three years
arrears, a condition not entirely perfection in the details of their duties. creditable to the derelict officials.
What is most obvious, and a just ground for This state of things brought into existence the criticism, is a lack of the spirit and enthusiasm necunofficial series, which in turn forced the Official essary for success in every department, and this is Reporters to energetic and prompt issue of the most apparent in the want of uniformity, in the volumes in arrears, and there seems to be no diflic method and character of the reports, a failure to act culty, at this time, in their keeping abreast of their in pursuance of a well considered plan, and to study work,
and follow approved and scientific methods, adapted In order, however, that the Official Reports may to pres conditions, for it must be admitted, that meet the demands of the profession, it is doubtless reporting as a science has advanced but little within necessary that they should publish all the reports the century. of the Superior Appellate Tribunals, in order to meet It is true that there exists in some few instances the demand for all the available decisions. With an apparently deep seated prejudice against clearsuch authority and supported by the resources of the ness and simplicity of statement, an unwillingness State, it is not too much to say, that if the Official to present the important facts, on which the discusReporters of the Court show the energy, enterprise sion turns, and an anxiety to enter into minute deand sagacity of private business houses, in prepar- tails as to matter of no importance, except to the ing and issuing their reports, there will be little parties, and as to them of doubtful consequence, but demand for anything except the official volumes. it is their misfortune, that they are occasionally reAny reporter competent for his work should be able quired to make sense out of an unintelligible stateto do this, at least as well as can be done by any ment or to reconcile with established rules, a chance other person, without his facilities, and with the conclusion which is with difficulty made to bear public treasury virtually at his call, he should cer such a construction, and it must be conceded, that tainly be able to perform it speedily, if not it would as to those matters the learned members of the court seem that his resignation shoulıl be promptly are much the greater sinners. accepted by the Court from which he hold his It is not reasonably to be required of the reporappointment.
ters that they “shall make bricks without straw." It is not only in reference to the reports of ad It is not proposed to consider or advise as to the judged cases within a single jurisdiction that the choice of methods to be adopted in preparing a official reporters of the courts may and should prop- syllabus. It is vloubtless true that no hard and erly furnish copies promptly and cheaply, but since fast rule, even under the most approved and scienthe preparation of the matter is necessary for the tific method, can be adopted which is, or can be series edited by each separately, it may be advan- | made applicable to all cases, yet it seems not only
possible, but comparatively easy of accomplish- selection of titles anil subtitles, which are not likely ment, by careful analysis and diligent study of the to occur to the mind of any, except an intellectual best reporters (and their name is legion) to extract athlete, while liis memory seems to utterly fail him al uniform rule, or set of rules, as to treatment of in recalling those titles, likely to be in the mind of the head note.
the practicing lawyer. It is certainly safe to follow the plan recom Whatever may be the fact its to the possibility of mended in the preface to Douglas Reports, “to applying scientific methods to the drafting of the state the point as a general rule or proposition," nor head note, there can be none as to the possibility of is there doubt of the rule laid down by a writer in
a system of indices, which shall be uniform and well the Law Quarterly Revier, that, “if it cirse aflorils understood by the profession, and this uniformity an illustration of a well-known principle, the proshould estond not only to the indices to the reports, fession does not guin by that principle being buried but to the digests, State and National, so that with in a mass of facts," although it very recent writer
a system of cross references, a larger may reasonon the subject says: The syllabus must state not
ably expect to tind the same sulject matter under only those facts which furnish adequate premises the same title, in the different reports and digests. for the conclusions reached, but every fact which
The variety in type, binding and mechanical exemay distinguish, the instant Case from another,cution of the reports would scarcely merit special which would apparently fall under the same general attention but for the fact that, ils al rule, the larger principle."
the type the smaller the page, and cheaper the bindThe report of the Law Committee of the Vir- | ing, the more expensive is the report. ginia Bar Association, already referred to, says on So simple a matter as placing the number of the this point : “The common practice of inserting volume at the top of the page, so as to save turning the successive steps of the reasoning, merely used the book to examine the back while holding it open by the court, as the premises from which to evolve to write out a citation, escapes the attention of the conclusion, is wrong in principle and mislead. most reporters and publishers, while the use of a ing to practitioners, and legal writers in covering style of binding, by which the volume remains up the true issue with a mass of rubbish."
open at any page, is a feature of one of the leading Professor Wambaugh holds the duty of the unoflicial series which commends its mechanical reporter to be, “to determine by his own study; execution and evokes a wish that the good example the proposition of the law involved in the case, may prove contagious. and not simply to extract from the opinion a few The examination of authorities is so important a apparently pertinent sentences."
part of the work of a lawyer that every effort It is quite certain too, that a very brief statement should be made to lessen both the mental and of the points involved introductory to and independ- manual labor convected with the search for cases in ent of tine head note, is a matter of great conveni-point, and while the details of mechanical execution ence, while appropriate catch words in a different are apparently umimportant, they can be readily letter, showing the subject treated by each parit- remedied, and the most intelligent and painstaking graph, will save much labor to one examining a effort should be made to embody in the head note large number of cases, and in this connection, may a clear, concise, correct statement of the legal rules be urged so far as possible, at least when the prin- determined by the opinion, and the index so arciples decided are of substantially equal importance ranged as to afford the worker complete facilities the desirability of stating the questions decided in for thorough investigation. consecutive order, following that in the opinion,
THE MULTIPLICITY OF REPORTED ('ASES. sivce it frequently, in fact almost always happens, that a case is consulted for the rule on a specitic
The enormous increase in the number of the point, and as in preparing a brief, counsel neces reports is, upon the whole, by far the most serious sarily examines a number of authorities, time is an aspect of the question in hand. It is also the important element, not to speak of the annoyance problem most difficult of solution, since the causes of searching through pages of a lengthy opinion to are deep seated and irremovible, being connected find that the point stated in the last paragraph of with the foundation of our system of law and form the head note is disposed of by the court, in the of government. first sentence of the opinion.
The evils from this source have their origin, A difference in method to a still greater degree, First. In the cloctrine Stuene Deriris, the corner is found in the manner of preparing the inden stone of the common law. This too presents a lack of uniformity, which causes Second. In the number of independent appellate a loss of much time, labor and patience, since the juridicatures which administer the lair among Enyimagination of some reporters seems to revel in the I lish speaking people.
Third. The rule recognized by organic and client, if the fate of the Alexandrian library should statute law, authorizing the free publication of the befall very much the larger portion of the reports decisions of the courts.
of adjudicated cases in all English speaking “the reporting of certain cases or ex countries, but in place of such fortune, we must amples is the most perspicuous course of teaching the contemplate the multiplication of reports in fortycommon law."
four States, in the federal tribunals, in England, Hale described the unwritten laws as having her provinces and dependencies. It is in the large "acquired their binding power by a long and im number of different and independent judicatories memoral usage, and by the strength of custom and existing in this country that we find most of the reception in the kingdom," and the late lord difficulty as to the mass of authority emanating chancellor aptly described the situation in these from the courts. Very many of the States have words: “Where the judges have a new case be more than a single appellate tribunal, and these fore them they do not profess to arrive at the law added to the reports of the Supreme Court of the by reasoning, by theory, or by philosophical in United States, the Circuit Courts of Appeal and the quiry, but by searching among the records of former several Federal Circuits, furnish a volume of legal decisions, for cases which are supposed to be ana
literature which is appalling. logous to the case before them, and they derive When we observe that the official reporters numfrom these analogies the rules which they desire for ber more than sixty, and that in a State in which the determination of the particular case.”'
three official series are issued, eight volumes a year The doctrine, as stated by a recent writer, is: scarcely suffice for all the causes in a single court, “In the court pronouncing a decision, and in the we need not be so much surprised at the number of courts subordinate to it, a decision, so far as it reports as, that under such circumstances, the comestablishes a doctrine, is a precedent of imperative mon law retains its distinctive features and adapts authority until it is either reversed or overruled.” itself so readily and wonderfully to such extra
Thus “the custom of the Kings Court is the cus ordinary conditions. tom of England, and becomes the common law.” Add to these considerations the constitutional
This view, so radically unlike that prevalent on right of every citizen to cite and publish the dethe continent under the civil law, is, and so long
cisions of the courts and we have no occasion to as it retains its position must be, fruitful in reports
wonder at the number and extent of the law reof opinions banded down by the courts, since such ports in this country. decisions constitute not only valuable precedents There is to be found in the suggestions made applicable by analogy to like cases, but embody the abundant reasons for the publication and the preabsolute rule of law which must be applied to the servation of such judicial decisions as will serve to case in hand whenever the facts bring it within aid in the determination of questions likely to be the principle theretofore decided.
litigated, but this is also the strongest possible The presentation of a cause at the bar is regarded argument in favor of writing brief opinions, or none as incomplete, and the attorney considered as re at all, on questions of no interest to the profession miss in his duty, if even the most elementary propo or the public, and it is such questions that constisitions are not supported by a citation of authori- tute a very large proportion of the business of the ties, even though it involves nothing more than the courts. The books are crowded with discussions interpretation of a rule of court, or the construc as to the interpretation of purely local statutes, and tion of the most unimportant local statute.
with the iteration and reiteration of well settled The term “case lawyer" is frequently used as a principles, applied sometimes to peculiar facts, but term of reproach for a laborious practitioner, but it it must be remembered that these questions, alis nevertheless true that principles are to be found though of no general interest or usefulness, were of in cases, and are frequently found applied to a sim- great importance to the parties, have been argued ilar state of facts. Hence the “case lawyer ” wins by able counsel and taken much of the time and cases because he has examined the books thor- attention of the court, and thus the reasons for the oughly, first, to find a case on all fours, then to find decisions naturally find their way into an elaborate one where the rule is established as he coutends; opinion. these failing him he looks for an analagous rule Most to be deprecated perhaps is the controwhich may be applied to the case in hand, and versial opinion written not to expound a legal prinfinally, if a prudent man, takes pains to ascertain ciple, but to persuade other members of the bench, whether there is any aid or comfort given his ad- too obtuse to appreciate fully the reasoning, or to versary by a decision, dictum or query.
yield readily to the logic of their associate. It is not at all clear but that it would be highly In some jurisdictions, notably in the New York beneficial to the profession, the bench and the Court of Appeals, the judges have come to regard