Report me and my cause aright
Hamlet, Act V, Scene 2

  The Catchline


Volume XXIII, No. 2 April 2005


Some President's Messages have been longer than others; this will be one of the short ones. There is a saying that goes something like, "I didn't have time to write a short opinion, so I wrote a long one instead." If that applies to a President's Message, it means I had lots of time on my hands.

In California, we are blessed, among other things, with a small cadre of academic "railbirds" who regularly critique and review the California Supreme Court's opinions in the local tabloid legal press. One notable critic characterizes the court's opinions as "dense bureaucratic prose," saying the opinions would be better if written by annual law clerks right out of law school, not the career research attorneys that predominate the justices' staffs. But that is a debate for another venue and time.

With respect to the association, planning for the annual meeting in London is going well, although the currency exchange rate is apparently not going well these days. Lloyd Hysan reports that many members have taken advantage of early booking at the Bonnington Hotel, as announced to the ARJD e-mail list for members, but accommodations remain plentiful for those waiting for the formal announcement and registration materials before making hotel arrangements.

We have received generous commitments for vendor sponsorship of activities, both social and educational, and Robert Williams, who was with us in New York from the Incorporated Council of Law Reporting for England and Wales, is arranging a reception at Gray's Inn, which I understand is close to the Bonnington Hotel. As "teasers," I can say that an aerial adventure is planned (participation will be optional), there will be the traditional evening cruise, this time on the Thames, and a no-host dinner on Wednesday before the meeting begins. Beyond that, saying more would be imprudent until more information is received from vendors and the executive board has the chance to review various alternatives for the agenda.

And thanks to everyone who has already provided so much assistance and done so much work for the London meeting. To single out anyone from the many who have helped thus far is a bad thing to do, but Leah Walker, from the United States Supreme Court, deserves special mention for generously sharing the experience and knowledge she gained from living in London. And Lloyd Hysan always seems deserving of special mention when it comes down to the annual meetings.

Finally, anyone who is able to attend is invited to the executive board meeting, May 6, at the United States Supreme Court. Thanks to Frank Wagner and Wilma Grant for once again accommodating the executive board, those committee chair able to attend, and any other member who can come. It seems like it has been a relatively quiet year thus far for issues affecting reporters of decisions, but if I have been preoccupied with London planning and missing any issues the association should address, please raise them for the May 6 meeting. I note the librarians have published a new edition of their guide to universal citations, and that is an issue warranting continuous watching, even if it still seems "as dead as Julius Caesar."

ARJD in London

Thursday, August 4
Monday, August 8, 2004

Davis Strikes Again!

Recently, I received a letter from an irate reader declaring that, in Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394 (1886), "Court Reporter J. C. Bancroft Davis misrepresented the Court Opinion in the headnote he wrote," and that "[t]his illegal misrepresentation must be corrected by the . . . Court to restore public trust in Supreme Court Opinions." The reader did not really state the nature of his concern with the Santa Clara case, but it undoubtedly related to one of the most fascinating episodes in the annals of the Supreme Court Reporters. I was already aware of the incident because California Reporter of Decisions Ed Jessen brought it to my attention several years ago at the behest of Peter Belton, former senior law clerk for the California Supreme Court and the present editor of the California Rules of Court. At this late date, it occurs to me that Catchline readers might be interested in hearing the rest of the story.

In his Santa Clara syllabus, Davis wrote: "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws." 118 U. S., at 394 395. Two pages later, Mr. Davis' Statement of Facts, id., at 396, declares: "One of the points made and discussed at length in the brief of counsel . . . was that 'Corporations are persons within the meaning of the Fourteenth Amendment . . . . ' Before argument, Mr. Chief Justice Waite said: The Court does not wish to hear argument on the question whether . . . the Fourteenth Amendment . . ., which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." Despite the fact that the ensuing unanimous opinion (authored by the first Justice Harlan) is wholly silent on the question, subsequent decisions have cited Santa Clara as authority for the rule that corporations are persons within the meaning of the Fourteenth Amendment. See, e.g., Minneapolis & St. Louis R. Co. v. Beckwith, 129 U. S. 26, 28, and First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 780, n. 15 (1978).

Generations of commentators have considered the Santa Clara County syllabus and summary to be evidence that Reporter Davis simply made up, out of whole cloth, the important rule that corporations enjoy the same rights as natural persons. However, further delving into the historical record reveals that this was probably not the case. One of the Supreme Court's wonderful Research Librarians, Linda Corbelli, unearthed a discussion of this matter in the biography of Chief Justice Waite authored by C. Peter Magrath. In Morrison R Waite, The Triumph of Character, pp. 222 224 (MacMillan 1963), Mr. Magrath recounts that Reporter Davis wrote the headnote and summary in question after first asking Chief Justice Waite "whether I correctly caught your words . . . ." Waite replied: "I think your mem[orandum] expresses with sufficient accuracy what was said before the argument began. I leave it with you to determine whether anything need be said about it in the report inasmuch as we avoided meeting the constitutional question in the decision." Magrath continues: "In other words, to the Reporter fell the decision which enshrined the declaration in the United States Reports. Had Davis left it out, [the case] would have been lost to history . . . . With the announcement the case became an apparently significant indication that the Waite Court was now ready to confer on corporations special immunity from economic regulation." Magrath also notes, however, that "Waite assumed the existence of corporate personality," given that "corporations had been regarded as natural persons under the common law since Coke's day," and that "a number of significant decisions preceding [Santa Clara] implicitly assumed" the same. It therefore appears that although the Santa Clara syllabus and summary may have stated new law not set forth in the opinion itself, Reporter Davis did so on the authority of the Chief Justice, and that this authorization was later ratified by the Court in a number of opinions.

Accordingly, I told my angry correspondent that there was nothing I could do about his complaint. Each Supreme Court slip opinion is preceded by the legend: "Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C., 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press." However, as indicated above, the complained-of syllabus contains no "typographical or other formal errors," and the Court simply has no other procedure for correcting possible substantive misstatements in a 119-year-old syllabus. Indeed, there is no reason to do so, since the following statement appears at the top of every syllabus in its slip opinion version: "The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader." That statement has preceded syllabuses ever since United States v. Detroit Timber & Lumber Co., 200 U. S. 321 (1906), where the Court rejected the Federal Government's reliance on another Davis headnote on the ground that the earlier syllabus "misinterpret[ed] the scope," id., at 337, of the Court's opinion in Hawley v. Diller, 178 U. S. 476 (1900). See Wagner, The Role of the Supreme Court Reporter in History, 2001 J. S. Ct. History 1, 11 12. If nothing else, Mr. Davis' colorful headnoting may prove instructive to later Reporters bent on learning how not to summarize a decision. Frank Wagner

Massachusetts Appellate Courts

Dedicate the John Adams Courthouse

On March 31, 2005, the John Adams Courthouse was officially dedicated to honor attorney, patriot, and statesman John Adams. In addition to being a signer of the Declaration of Independence, Vice President, and President, Adams was Chief Justice of the Supreme Judicial Court of Massachusetts from 1775 to 1777, the principal drafter of the Massachusetts Constitution, and an advocate of the principle of an independent judiciary.

The courthouse was originally constructed between 1886 and 1893. The renovation and restoration took place between 2001 and 2004. The office of the Massachusetts Reporter of Decisions is located on Floor 2M. You are all invited to visit the next time you come to Boston. Additional information about the history of the courthouse and its recent restoration may be found at

Reminder: Spring

Executive Board Meeting

The Spring Executive Board Meeting will be held on Friday, May 6 in Washington, D.C., at the United States Supreme Court. The meeting will begin at 9:00 A.M. and adjourn about 4:00 P.M. All members are welcome and are encouraged to attend the meeting.

November 16, 2004, ARJD Board Meeting

The ARJD board met on November 16, 2004, at the Supreme Court of the United States. Those who attended include thepresident, Ed Jessen; the vice president, Barbara Kincaid; the secretary, Wilma Grant; past president, Bilee Cauley; and members Christine Fallon, Frank Wagner, Lloyd Hysan, and Cliff Allen.

The treasurer's report for the period from July 1, 2004, to November 5, 2004, was presented and approved. The treasure, Tim Fuller reported that the ARJD treasury is in very good shape. The balance in accounts on November 5, 2004 was $15, 192.49. The board placed the sum of $8,000 in a certificate of deposit as recommended by the treasurer.

Andy Ashe submitted the report of the Website Committee. Andy reported that the ARJD site has been updated to reflect the new officers and Catchline editors. The November 2004 Catchline has been added in a printable format. The board reiterated its position that, at least for the present, the mailing list/discussion group remain "for members only."

The Membership Committee report prepared by Kathyrn Bann indicated that Dan Long of the United States Supreme Court has become a member of the ARJD. Welcome! Several others have expressed interest and have been sent information. The board held an extended discussion on the topic of ARJD membership from the ranks of academia and nonprofit institutions. Honorary membership for persons in these categories was discussed and the topic will be referred to the membership at our annual meeting in London.

The Site Selection Committee report was presented by Lloyd Hysan. Looking into the future beyond London, it appears that we will be meeting August 2-7, 2006, in Kansas City; August 1-6, 2007, in Anchorage, Alaska; and August 6-11, 2008, in Pittsburgh. The following information about our stay in London might be helpful:

The Hotel Bonnington is located at 92 Southampton Row, London WC1B 4BH England. The telephone number at the Bonnington is 020-7242-2828 and the web address is -- Check-in time is 2 PM and check-out time is 11 AM. The hotel is a three-star property, located in the Bloomsbury area 18 miles from Heathrow Airport, and near the British Museum, the Royal Courts of Justice, the West End Theatre District, and Covent Garden. The hotel does not provide transportation to and from the airport.

Association of Reporters of Judicial Decisions

President: Edward W. Jessen
Reporter of Decisions
Supreme Court of California

Vice-President: Barbara Kincaid
General Counsel, Law Branch
Supreme Court of Canada

Secretary: Wilma Grant
Manager, Publications Unit, Office of Data Systems
Supreme Court of the United States

Treasurer: Tim Fuller
Reporter of Decisions
Washington Supreme Court

The Catchline
C. Clifford Allen
Massachusetts Supreme Judicial Court
Edward W. Jessen
Supreme Court of California

Layout: Denise Lynch
Supreme Court of California

Volume XXIII, No. 2 April 2005

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