Report me and my cause aright
Hamlet, Act V, Scene 2
|Volume XXVII, No. 2||April 2008|
Dear ARJD Members:
You'll immediately note that this is a substantive newsletter with a wealth of information on some of our educational speakers for our annual meeting. The ARJD Executive Board will hold their Spring meeting in Washington, DC on May 2 at the Supreme Court of the United States (Natalie Cornell Rehnquist Dining Room), please join us if you are in the vicinity. We look forward to renewing our peer-to-peer networking relationships at our 27th Annual Meeting in Pittsburgh, PA -- August 6-11, 2008. The Omni William Penn Hotel reservation number is: (412) 281-7100 -- please specify ARJD2008 in order to get ARJD room pricing of $135 per night plus tax. I previously distributed the on-line link to members via e-mail (the hotel's numerical code for ARJD will automatically fill in if you make reservation online). We already have 111 room nights sold -- I urge you to avoid disappointment by booking your room now. Rooms cut-off date is July 1, 2008.
Treasurer Tim Fuller's interim treasury report (July 1, 2007 thru. March 10, 2008) shows Income of $9,395.14 and Expenses of $9,384.75. Excess of income over expenses $10.39. Balance in accounts on March 10, 2008 of $14,205.13. [Note: Per Executive Board actions, costs for the Anchorage meeting have been contained as much as possible.]
Scribes continues to be an issue for committee action due to further concerns about distribution/mailing to ARJD members and also due to feedback that some of our membership will not qualify for membership though the cost remains at $650 annually. This is rescheduled for May meeting. I recommend that all such future proposals be tendered to the Executive Committee with full information and cost impact data.
Sincere thanks to ARJD Education Chair Clifford Allen for his work in attaining wonderful speakers for the Pittsburgh conference (see "tentative" business schedule) and also to Kristen Fiore, intern in the Office of the Reporter of Decisions of the Massachusetts Supreme Judicial Court, who has prepared summaries of recent articles written by two of the speakers for this newsletter. Their work will certainly contribute to the success of our annual meeting and to members' educational growth. As it stands now, no Court visit is planned this year, however, the wealth of information from these speakers, plus several roundtable panel sessions should more than meet the educational needs of members. Cliff will moderate a panel on: "We Now Know What New Members Want -- Let's Start To Provide It". He needs a couple of ARJD moderators for (1) Panel on: "Too Many Cases Reported, Too Much Citation?" [Friday morning session] and another for our (2) Panel on: "Open Discussion" [Monday morning session]. If you are interested please contact him.
Special event information: We will continue our ARJD Welcome Dinner on Wednesday, August 6 and Bilee Cauley, Pittsburgh native will be our wonderful host at McCormick & Schmick's -- dinner at 7 p.m.; we'll continue our "all-in" cost of $50 per person, includes tax and gratuity and choice of four lovely entrées, plus salad and dessert. Alcoholic beverages can be ordered separately from your waitress and individual billing is available.
Our vendor/sponsors begin their events with a Thursday evening dinner at The Warhol Museum sponsored by LexisNexis -- details to come.
On Friday evening our event sponsor is Loislaw -- experience the thrill of A Hawaiian Dinner Cruise & Show to be hosted on one of Gateway Clipper's five grand riverboats. Entertainment will be by Tuika's Polynesian Island Magic, featuring authentic Hawaiian and Polynesian dance. At 5:30-6 p.m. shuttles will depart the hotel for this cruise. Plan to arrive back at the hotel by 10 p.m. RSVP's are needed in advance for this event so please RSVP email@example.com in order to assure your place on board. Color flyers will be placed in your annual meeting package with more details on this and all other vendor events.
Our Saturday evening event sponsor is Thomson Reuters and we'll be having dinner at Pittsburgh's renowned Senator John Heinz Museum -- details to come. Thomson will also continue its sponsorship of a Hospitality Room during our meeting -- hours to be announced separately (taking into consideration all other hosted event times).
Attendees will have a free day on Sunday to explore Pittsburgh or have a special outing to many of the wonderful places and restaurants that Bilee Cauley lists in her article that follows.
Please note that there will be an Executive Committee dinner on Thursday, May 1, at The Monocle restaurant in Washington, DC at 7 p.m. . . . indeed I am on my way there now to enjoy dinner with a friend.
That's a wrap for this newsletter everyone! Hope to see everyone in Pittsburgh.
Wilma M. Grant
President, ARJD 2006-2008
by Bilee Cauley
Several years ago National Geographic rated 10 of the most beautiful sights in the United States; only two of them were in cities, and one of them was in Pittsburgh. As you approach the city from the Pittsburgh International Airport, you drive through the Fort Pitt Tunnel. When you emerge on the other side of the tunnel, a panoramic view of Pittsburgh at the intersection of three rivers, with green hills in the background, greets you. So strong is the impression that Pittsburgh has been called the only city in America with a front door. This will be your first hint that you are in for something special at the annual meeting in Pittsburgh. No longer a dirty steel town, Pittsburgh is a true renaissance city. A city of gothic and modern cathedrals and Old World, neighborly charms, filled with friendly faces, fun, and adventure. USA Weekend's 2003 Annual Travel Report ranked Pittsburgh the second most beautiful place in America:
"In a nation with a wealth of stunning cities full of compelling stories, ranking Pittsburgh as the No. 2 beauty spot is perhaps our most surprising choice. But the Steel City's aesthetic appeal is undeniable, as is its very American capacity for renewal."
Although the steel mills that once lined its rivers are gone, as are the immigrant steel workers who -- literally and figuratively -- built the city, Pittsburgh remains a city of ethnic neighborhoods. There are 88 distinct ethnic neighborhoods in Pittsburgh -- Hungarian, Polish, Irish, Italian, Indian, etc. Each neighborhood has its local bar or tavern and its restaurants. One of my favorites is the Gypsy Café, which serves Eastern European cuisine while a gypsy band plays in the background and sings Hungarian folk songs (in Hungarian). The culture of 23 nationalities -- Africa to Ukraine -- is showcased in the Nationality Rooms in the Cathedral of Learning on the campus of the University of Pittsburgh.
Love museums? Pittsburgh has plenty: the Carnegie Museum of Natural History, home to one of the largest (both in size and quantity) dinosaur exhibits in the country; the Andy Warhol Museum (see the soup cans and the contents of Andy's medicine chest -- the latter a little creepy); the Mattress Factory, a contemporary art museum that commissions, exhibits, and collects new site-specific installations created by artists in residence; the Senator John Heinz History Center, which includes as a permanent exhibit the Western Pennsylvania Sports Museum (where you can find Franco Harris's "Immaculate Reception" shoes, Satchel Paige's baseball glove, and the pitching rubber from the 1960 World Series, among other items); and the Carnegie Museum of Science, to name just a few.
Love food? Walk the streets of the Strip District, a vibrant neighborhood of shops and food places. Stop in Primanti Brothers, where the signature sandwich stacks meat, melted cheese, french fries, tomato, and cole slaw between slices of Italian bread; if you haven't been to Primanti's, you haven't been to Pittsburgh. Visit Wholey's to check out the fresh fish or the Pennsylvania Macaroni Company for -- what else? -- pasta, cheese, and more varieties of olives than you're likely to see anywhere outside Tuscany. Enjoy Roland's signature lobster-roll sandwich --delicious. Fine dining? No problem. Try Eleven (one of my personal favorites), a quiet, elegant spot for a drink or a meal; or Lidia's (another one of my favorites and also in the Strip District) for Italian.
Love to shop? Try some of the neighborhoods -- no Banana Republics here, but plenty of quaint local shops: Shadyside, the South Side, Squirrel Hill -- to name just a few.
Love bridges? There are 720 bridges in the city limits. Don't miss a ride on one of the two inclines that will take you to the top of Mt. Washington, where you can dine in style at any one of several fine restaurants or just enjoy a breathtaking view of Pittsburgh and the Point -- where the three rivers meet. People who live on Mt. Washington still use the inclines to get to and from work in the city.
Love roller coasters? Welcome to the Roller Coaster Capital of the World. Kennywood Park, an amusement park that has been in continuous operation since 1898, is a Pittsburgh landmark. Ride one of the old wooden rollercoasters (refurbished, of course), or take a spin on one of the new ones, with speeds over 80 mph. If you want something tamer, take a spin on the original handcrafted carousel, carved by William Denzel, famous for the details on his handcarved carousal animals.
Love the outdoors? Try a sightseeing cruise on the Gateway Clipper and see the city from its rivers. Want something a little more active? Kayak or row the rivers -- the Allegheny, the Monongahela, and the Ohio. Row past PNC Park and Heinz Stadium. If you have the time, go white-water rafting about an hour outside Pittsburgh at Ohiopyle, where you can also hike or mountain bike. Walk, run, or bike the Heritage Trail along the Monongahela River in Pittsburgh to see the skeletons of the old steel mills. Or spend the day at Sandcastle, a water park located in West Homestead on the site of the old Mesta Machine Company. Does anyone remember Pearl Mesta, the hostess with the mostess?
If you want to leave the city, take a short drive (one and one-half hours) to Fallingwater -- a house designed and built by Frank Lloyd Wright in the late 1930s as a weekend home for Edgar Kaufmann, a Pittsburgh department-store magnate. The house is furnished as it was when the Kaufmanns used it and is open for tours. About seven miles from Fallingwater is another Frank Lloyd Wright house -- Kentuck Knob, also open for tours. Wright completed Kentuck Knob in 1956, during the last decade of his life, for I.N. Hagan, the owner of Hagan's dairy and a friend of the Kaufmanns; it is now owned by an English gentleman, who added a lovely sculpture garden. While you're in the vicinity, take some time to tour Nemacolin Woodlands Resort, a luxury resort that includes an upscale spa and lodge and is a weekend getaway for a lot of Pittsburghers.
A city that fostered, among countless others, Mr. Rogers, Rachel Carson, Andy Warhol (whose tombstone in a local cemetery invariably has, not flowers, but cans of tomato soup left by admirers), Jeff Goldblum (a classmate of my brother's), and playwright August Wilson; a city that glories in its Steelers, Penguins, and Pirates; a city that was home to the first commercial radio broadcast on KDKA in 1920 and the first public television station -- WQED -- in 1954; a city where Jonas Salk developed the polio vaccine at the University of Pittsburgh. A city that you'll remember.
1. Professor Peter Martin, formerly Dean of the Cornell Law School, currently a professor at Cornell, and co-founder of Cornell's Legal Information Institute (the first and most widely used non-profit legal Web site), has written an article appearing at 99:2 of the Law Library Journal. In this article, Professor Martin addresses the subject of legal precedent in the digital age.
Professor Martin's article, Reconfiguring Law Reports and the Concept of Precedent for a Digital Age, explores how technology will reshape precedent. Our judicial system has traditionally relied upon print to disseminate official precedent, reflecting a commitment to consistency and predictability that is necessary for the law to function. However, the digital age has upset these formerly reliable means as case law now commonly reaches practitioners and the public via electronic channels. Professor Martin contends that digital reporting will not only promote consistency, but also offers many incidental gains as this medium is unrestricted by the costs and limitations of print. Digital reports will allow efficient publishing of decisions at the trial court level, easier and expanded inclusion of non-text media in opinions, less dependence upon the private sector for dissemination and affordable access to case law by small firms, trial judges and the general public. As long as print reporting subordinates electronic case law channels, the speed, efficiency and incidental perks of digital dissemination cannot be fully realized.
Even as technology continues to forge alternative distribution channels for case law, the courts remain committed to official print reports for precedent; this status quo has led to inconsistency and unnecessary costs. Precedent functionally requires knowledge and thus, its effectiveness is dependent upon the efficacy of the systems used to disseminate, store and retrieve cases. However, the various digital avenues by which the public can access opinions instantly are complicated and perhaps even rendered useless because publicly accessible digital opinions are neither official nor final. Even though technology allows for expedited access to decisions, months pass before the official print versions are finalized, which often differ, even substantively, from those available instantly online. Most states issuing opinions in a public, online format fail to minimize post-release revisions or update their decisions online with the changes reflected in print versions. With many practitioners and even some lower court judges relying upon these databases due to insufficient funding, the opportunity for inconsistency is clear. Further, this status quo also burdens the legal profession with unnecessary costs because decisions acquire their official citation from their print versions, issued months after release. Citation lag forces the electronic distributors who do make updates to retrofit decisions with official pagination, a wasteful and unnecessary process. Professor Martin proposes that reducing post-release revisions and invoking a medium-neutral citation (e.g., year, court, decision and paragraph number) would give official effect to the myriad online sources of opinions, thus reducing both costs and also inconsistency.
Professor Martin's proposals would spare the costs created by keying online decisions to their published versions and thus, would help dismantle the market position of dominant legal information vendors. Many small firms and solo practitioners depend upon products and databases offered by smaller, more affordable private competitors which cannot afford the expenses associated with retrofitting and revising opinions; the proposed changes would increase the reliability of these lower-cost options and the market standing of the companies that offer them. Furthermore, it would give court systems the realistic opportunity to engage in affordable and effective dissemination of their own precedent, reducing state courts' commercial and precedential dependence upon dominant legal information vendors.
Not only will consistency and affordability increase, but technology allows for richer and more inclusive precedent. Without the steep costs of production, distribution, and storage of print law reports, it will be much easier to digitally publish trial court opinions, much to the boon of those practicing family law, for whom no published precedent really exists. Digital reporting also better reflects the color, shape, texture, and movement of our modern world. The convention of print reporting has discouraged or even precluded the inclusion of media other than text in opinions. Digital reporting easily permits color images, video, and charts, which adds dimension, clarity and conciseness to opinions when text has insufficient explanatory power.
Prime potential roadblocks to increased reliance upon digital reporting include stodgy adherence to traditional print reporting and the private commercial interests of dominant legal information vendors. However, Professor Martin thinks the shift to digital reporting is inevitable as the efficiency, affordability and increased depth of decision writing offered by electronic means become more apparent.
2. Ethical Judicial Opinion Writing. Judge Gerald Lebovits of the New York City Civil Court, Housing Part, adjunct professor of law, and author of the Advanced Judicial Opinion Writing: A Handbook for New York State Trial and Appellate Courts (2004), which the New York State Office of Court Administration distributes to law clerks and judges in New York State, addresses a topic about which almost nothing has been written, how to write an honest judicial opinion (http://law.bepress.com/expresso/eps/ 1743).
In Ethical Judicial Opinion Writing, Judge Gerald Lebovits reveals that judicial ethical standards apply to not only a judge's conduct on the bench, but also her written opinions. Judicial opinions, in both substance and style, are tied to many ethical considerations due to their purpose in our judiciary system: opinions must promote stare decisis and inform divergent audiences, including the litigants, the legal community and the public at large. Judge Lebovits explores the ethical considerations that flow from these purposes by comparing the two predominant styles of judicial opinions (pure style and impure style) and elucidating the most common pitfalls of those styles. He concludes that an ethical opinion requires 'writing in the middle', i.e., incorporating the strengths and avoiding the weaknesses of both styles.
Pure style is recognized by its solemn, dignified and impersonal tone. Purists take a far more traditional and formal approach than impurists. The hallmarks of a pure opinion are precision, thorough detail, use of legalese and overt deference to precedent. The pure style may not emphasize readability, but it promotes accuracy of presentation and substance.
While the pure style conspicuously strives to maintain the integrity and prestige of the judiciary, purists sometimes evoke the opposite by over-complicating opinions and thus, alienating audiences, even practitioners. Purists' rigid structure, language choices and scrupulousness can lead to lengthy opinions that lack reasoning, economy and accessibility. Purists tend to substitute reliance on authority for reasoning, reducing the opinion's explanatory power and excessively increasing citation. Purists' affinity for legalese, Latinisms, Anglicized French, direct quotations and maxims has the same effect. Because the pure style is formal, purists often write in a lofty tone, frequently incorporating metadiscourse, unusual diction, and complex grammatical structures, which makes the substance of the opinion less accessible. Finally, the purist's meticulous nature handicaps the reader by unnecessarily increasing the length of the opinion; purists often over-explain relevant topics and incorporate irrelevant topics, resulting in dicta that blurs the true focus of the opinion.
Pure opinions that succumb to the preceding pitfalls violate ethical standards because they fail to satisfy audiences and thereby do not effectively reinforce stare decisis. Such opinions lack efficacy and honesty, barring their readers the opportunity to easily engage with the writing. Laypersons cannot access the opinion due to its highly technical nature. Members of the legal community are estranged because they lack the time to read such opinions not only because of their length, but also because the reader must wind through complex grammar, parse out dicta from holdings, and reach for a dictionary in order to grasp the substance in the opinion. For purists, Lebovits suggests "write less, think more", which ought to result in focused, shorter opinions that spare audiences unnecessary time and effort.
Impure style is a radical departure from pure style. Impurists write in an informal, conversational tone using plain language to promote the practicality of their opinions. The boon of an impure opinion is its clarity, economy and ease of access, which benefits all audiences, especially laypersons. Well-written impure opinions demonstrate that the voice of the courts can speak plainly and simply without denigrating the integrity and prestige of the judiciary.
The shorter and clearer opinions of impurists may increase accessibility and readership, but the style has its share of ethical pitfalls when the it is utilized to a careless extreme. To begin, the relaxed tone of the impure opinion should never lead to relaxed grammar. Because impure opinions are not rigid in structure and reasoning, impurists must be cautious that their opinions are not subject to multiple interpretations. Use of personal embellishments, humor, pop culture references, sarcasm and adventurous literary forms may increase readership and accessibility but only at the cost of timelessness and reasoning of the opinion. These devices can also compromise the prestige and respect that the court holds. For example, Judge Lebovits identified an opinion written in 'rap' that may have caught the public's attention, but the reaction was negative: all audiences, even laypersons, regarded the judge's writing as a farcical stunt. Finally, while the pure opinion excessively relies upon authority, the impure opinion often under-employs authority to promote the conversational flow of the opinion.
Like the pure style, the impure style at its extreme violates ethical standards, but in different ways. Impure opinions that demonstrate the preceding flaws may increase accessibility and capture the attention of all three audiences. However such opinions sacrifice reasoning, support, thoroughness, and longevity, and also threaten the respect and image of the judiciary system. Lebovits emphasizes that diligence, propriety and professionalism must be hallmarks of every opinion -- pure or impure; a judge's use of conversational tone does not exempt him from these ethical obligations.
While pure and impure opinions each have their own unique pitfalls, some ethical considerations cut across both styles. To sum up: Opinions should attempt to persuade the reader, especially in cases of first impression. The facts should be verified carefully; the judge must sift not regurgitate facts keeping in mind the dignity of the litigants by avoiding graphic accounts and respectfully resolving factual conflicts. The issues should be framed honestly, without limiting such definitions to those presented by the litigants. The claims, issues and rules must follow a neat, orderly and logical procession. Judges should avoid innuendo and refrain from boiler plate language. Judges must employ candor and maintain a tone that reflects professionalism, modesty, humanity and humility. Opinions must be rendered punctually. And finally, law clerks should be used to help research and draft, but not write a judge's opinion. The ethical considerations above elevate the substance and explanatory power of judicial opinions and promote respect for the court.
In conclusion, Judge Lebovits suggests that the ethical considerations outlined above are secured best when judges "write in the middle". Each style has its respective strengths, which should be fused into a single opinion; this fusion makes opinions legally precise yet easy to read for all audiences, thereby reinforcing stare decisis, the litigants' dignity and judiciary's prestige. Of course, he does not rule out the ability of purists and impurists to write ethical opinions in their singular style. Purists, like Justice Cardozo, and impurists, like Justice Holmes -- examples of our nation's greatest jurists -- demonstrate that Lebovits's ethical requirements can be satisfied without "writing in the middle". Nevertheless, Judge Lebovits's proposal is sound, and since the common law and our legal system's integrity are at stake, modifying a personal style preference is a small sacrifice.
Lebovits called this "throat clearing" -- e.g., "As a matter of fact...", "It is hornbook law that..."
 E.g., poetry, rap, among other styles.
Congratulations and best wishes are in order for John Fee, who has retired as Reporter of Decisions of the United States Tax Court, effective January 3, 2008. John, a charter member of the ARJD, served as treasurer of our organization from 1983-1987, and as our sixth president from 1987 to 1988. John was the Assistant Reporter of the United States Tax Court until succeeding the Reporter, Mary T. Pittman, who is also a charter member of the ARJD, upon Mary's retirement on April 3, 1989.
As I read the obituary of Professor Neill Alford, Jr., former Reporter of Decisions of the Virginia Supreme Court and a charter member of the ARJD, I was struck by the undeniable fact that he was, indeed, a man of many accomplishments. I also found it important that a record of his professional and military accomplishments be preserved in the Catchline.
As reported in the Daily Progress of Charlottesville, Virginia, Professor Alford died on October 20, 2007, in Charlottesville. He was 88. Professor Alford earned a B.A. in history from the Citadel in 1940, an LL.B from the University of Virginia School of Law in 1947, and a J.S.D. from Yale University Law School in 1966. He was a Sterling Fellow at Yale and a Ford Fellow at the University of Wisconsin. As a faculty member at the University of Virginia School of Law, which he joined in 1947, Professor Alford taught from 1947-1974 and from 1976 until his retirement in 1990. Among the subjects which he taught were trusts and estates, international law, professional responsibility, legal history, tax law, and insurance law.
In addition, Professor Alford held the Chair of International Law at the U.S. Naval War College from 1961-1962 and was a consultant for the war college from 1962-1968; he was dean of the law school and Joseph Henry Lumpkin professor of law at the University of Georgia from 1974-1976; he was Lehman distinguished visiting professor of law at Washington University in St. Louis in 1991, professor of law at the Ohio State University in 1992, and a visiting professor in the Washington & Lee University law school in 1992; and he was a summer law teacher at George Washington University, the University of North Carolina, and the University of Alabama.
Professor Alford's accomplishments also included service as chairman of the board of directors of the University Press of Virginia from 1970-1974 and from 1987-1989, and as a member of numerous university committees. In 1990, he received the University's Raven Award in recognition of excellence and contributions to the university. At the University of Virginia, he was special counsel to the president and legal advisor to the rector and board of visitors from 1972-1974.
It was during the years 1977 to 1984 that Professor Alford was State Reporter for the Supreme Court of Virginia. Earlier in his career (1954-1957), he was special counsel to the Virginia Code Commission. As a writer, he was the author of the book, Modern Economic Warfare and the Naval Participant (1967); co-author of a casebook, Cases and Materials on Decedents Estates and Trusts (Ritchie, Alford and Effland; 8th edition, 1993); and the writer of numerous legal articles for professional journals.
From 1991-1997, Professor Alford practiced law in Charlottesville as counsel to Slaughter & Redlinger. Throughout his career he provided thousands of hours of free legal assistance to people from all walks of life and was a member of many bar associations and other law-related societies.
During World War II, he served on active duty in the Army as an infantry officer from 1941 to 1946 in France, Germany, and Austria. He was awarded the Bronze Star and the Combat Infantry Badge. After the war ended, he remained on Army duty in Europe, overseeing displaced person camps near Linz, Austria, and being responsible at the age of 25 for the welfare of some 225,000 people. He was discharged in 1946 from active duty at the rank of lieutenant colonel and in 1969 retired from the Army Reserve at the rank of colonel.
Book Review: "The Superior Courts of Law -- 'Official' Law Reporting in Ireland 1866-2006," by Eamonn G. Hall. Reviewed by C. Clifford Allen.
Doctor Hall is a former chairman of the Incorporated Council of Law Reporting for Ireland, a long-time member of the council, and a member of the Association of Reporters of Judicial Decisions (ARJD). Doctor Hall's book discusses the history of law reporting; the establishment and development of the Law Reporting Council for Ireland, including the tensions, successes, and failures experienced along the way; law reporting and the centrality of precedent; the selection and contents of a law report; and the problems of too many reports and too much citation. There are also several appendices containing lists (1866-2007) of the succession of judges, members of the council, and the editors and reporters of the Irish Reports. The book also contains many portraits of the judges and lawyers who have been associated with the council.
Many reporters who are mandated by statute to publish all the decisions of their jurisdiction's highest court, will find interesting the diminished role of judges and the primary role of the council in selecting which cases to be reported. In fact, Dr. Hall states that law reporting in the United Kingdom and Ireland, especially since the creation of the council in 1866, has followed the concept that the selection of decisions to report should be independent of the judiciary and that, generally speaking, "the judiciary should have no direct or controlling power over the process, even though the judges' own decisions are being reported." That being said, what criteria does the council use in selecting decisions to report?
Doctor Hall points out that decisions are chosen which introduce, or appear to introduce, a new principle or a new rule; which materially modify an existing rule or principle; which settle, or materially tend to settle, a question upon which the law is doubtful; or which for any reason are peculiarly instructive. The editorial committee of the council has established two categories of decisions that ought not to be reported: those decisions which pass without discussion or consideration, and which are without value as precedents, and those decisions which are substantially repetitions of what is already reported.
The problems of too many reports and too much citation are complex issues. Before the coming of the law reporter, it was difficult to know the case law because the judges' decisions were not being reported. Even after the advent of the official reports there was controversy over free access to the courts' decisions. Doctor Hall cites a Nineteenth Century decision, Nash v. Lathrop, 142 Mass. 29, 35 (1886), which was an action to compel the reporter of decisions to allow a daily paper devoted to the law to examine and, for the purpose of publication, take copies of the opinions in the custody of the reporter, which the reporter contended were in his sole possession until their publication in the official reports. The Supreme Judicial Court stated that "justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the . . . decisions and opinions of the justices." Doctor Hall thoroughly examines the issues raised by free access to opinions, including copyright and the citation of unreported decisions.
It was not long before the issue of the scarcity of opinions was replaced with the issue of how to handle so many opinions. In that vein, Dr. Hall begins by noting that the proliferation of reported cases is not a new phenomena and that, by 1849 in Great Britain and Ireland, there was criticism that there were too many cases being reported. This is certainly true today, given the nearly limitless capacity of the Internet. Doctor Hall notes that, in earlier times, the nature of book publishing itself placed a limit on what could be reported, but that the Internet provides unlimited space, allowing for unlimited reporting of decisions. This affects not only the volume of reported decisions but creates a tendency to cite in court every case that has a bearing on the subject at issue. The result is a glut of case law and the weakening of precedent. Dr. Hall believes that it would be wrong to prohibit the citation of cases published on the Internet, but he states that the issue is whether lawyers should be expected to consider whether the source is a reputable series of reports or a less reliable online service.
Doctor Hall thoroughly analyzes these issues and concludes that public policy strongly favors the citation of all decisions, that the scarcity of reported opinions in the past makes it unlikely that judges will want to prohibit the citation of unreported cases, and that judges in Ireland in the future will rely less on precedent and more on general principles of law. I found the discussion that followed relating to the issues of too many reports and too much citation to be particularly timely and informative.
I would recommend Dr. Hall's book without reservation. While it is a fascinating account of official law reporting as it has developed in Ireland, the issues raised and analyzed are important not only to ARJD members, but to the judges whose decisions are being reported and the members of the bar who rely on "a coherent and impartial system of law reporting . . . properly commented upon and developed in an orderly and coherent fashion."
Jake Dear, Chief Supervising Attorney, and Edward W. Jessen, Reporter of Decisions, of the California Supreme Court have authored an essay found at 41 U. Cal. Davis L. Rev. 683 (2007), entitled "Followed Rates" and Leading State Cases, 1940-2005. An article about the essay appeared on March 11, 2008, at http://nytimes.com/2008/03/11/us/11bar.html?
The "citation analysis" used in this essay differs from others that have collected data based on the number of times a decision has been cited. Rather than following the traditional analysis, this essay utilizes data showing cases that have been "followed," as that term is used by Shepard's Citations Service.
While the results of the analysis indicate that the California Supreme Court is the most "followed" state supreme court during the years 1940-2005, a result that is consistent with prior literature, there has been a re-shuffling in those states ranked highest in previous studies. The first graph in the essay shows for all fifty states the number of high court decisions that have been "followed" at least once by an out-of-state court from 1940-2005. The top ten in this category are: California, Washington, Colorado, Iowa, Minnesota, Kansas, Massachusetts, Wisconsin, Oregon, and New York. For example, since 1940, California is the leader with 1,260 "followed" decisions; Washington and Colorado are next with 942 and 848 decisions. The median for all fifty state high courts is 453 decisions followed at least once. The second graph shows the number of high court decisions that have been "followed" at least three or more times by an out-of-state court from 1940-2005. The top ten in this category are: California, Washington, New Jersey, Kansas, Minnesota, Massachusetts, Arizona, Wisconsin, Oregon, and Colorado. This second graph also shows five or more "follows" and the top ten are: California, Washington, Arizona, New Jersey, Oregon, Minnesota, Wisconsin, Colorado, Nebraska, and Kansas. A third graph shows three or more "follows" from 1986-2005, and the top ten are: California, Washington, Arizona, New Jersey, New York, Kansas, Colorado, Nebraska, and seven states tied for ninth.
While California was in the first spot in studies based on data ending thirty to thirty-five years ago and continues at the top in this study, the older data showed the second and third jurisdictions as New York and New Jersey and the fourth and fifth states as either Pennsylvania and Massachusetts or Illinois and Texas. In this study based on the more recent data, the Washington Supreme Court has been the dominant second ranked court, with the Arizona Supreme Court, the New Jersey Supreme Court, and the Kansas Supreme Court next.
President: Wilma M. Grant,
Supreme Court of the United States
Vice President: Kevin Loftus,
Supreme Court of Connecticut
Secretary: Claude Marquis,
Supreme Court of Canada
Treasurer: Tim Fuller,
Supreme Court of Washington
Past President: Barbara Kincaid
Supreme Court of Canada
2007-2008 Committee Chairpersons
Education/Newsletter Editor: C. Clifford Allen,
Supreme Judicial Court of Massachusetts
Newsletter Publisher: Edward Jessen,
Supreme Court of California
Electronic Publishing: Ralph W. Preston,
Supreme Court of Ohio;
Honors: Richard D. Ross,
Kansas Supreme Court and Appeals Court
Membership: Bilee Cauley,
Alabama Appellate Courts
Nominating Committee: Shauna Thomas,
Supreme Court of Montana
Site Selection Committee: Janette Bloom,
Supreme Court of Nevada
Website Committee: Charles A. Ashe,
New York State Law Reporting Bureau
The Catchline Editor: C. Clifford Allen
Supreme Judicial Court of Massachusetts
Publisher: Edward W. Jessen
Supreme Court of California
Layout: Denise Lynch
Supreme Court of California
Volume XXVII, No. 2 April 2008
Visit our Web site at http://www.arjd.washlaw.edu