Proceedings of the Second International Symposium on Official Law Reporting 28, 29-39 (July 30, 2004)

Edward W. Jensen,
Reporter of Decisions,
California Supreme Court and Courts of Appeal
Before going back in time, I want to acknowledge reliance on the work of Erwin C. Surrency, particularly his 1990 book: A History of American Law Publishing, which was published by Oceana Publications, Inc. Beyond the exhaustive documentation and analysis he provides, it was a bibliographic resource that only a dedicated librarian could produce, and Mr. Surrency was Director of the Law Library and Professor of Law at the University of Georgia School of Law at the time the book was published.
While we are not going to go beyond Colonial America this morning, it might be necessary-or at least helpful-to simply note that without Johan Gutenberg in the middle of the 15th century, there would be no law reporting as we know it today, for law reporting is a small part of the revolution in disseminating knowledge that was started by Gutenberg.
Taking note of Johan Gutenberg is significant because, in Colonial America, the limited availability of printing presses significantly shaped the development of law reporting. Although the Crown did little to encourage legal publishing in the colonies, colonial governments needed their statutes, legislative journals, and other documents – such as manuals for justices of the peace – disseminated by printing, and to accomplish this, colonial governments had to "encourage" the spread of printing presses by providing subsidies and salaries for printers, and by guaranteed sales of the publications.
But the "encouragement" provided to these early colonial presses did not encompass reports of decisions from local colonial courts because, according to some historians, the colonial judges were not legally trained and their decisions were not models of judicial reasoning. For example, Thomas Jefferson remarked that colonial judges were "chosen without any regard to their legal knowledge; and their opinions could never be quoted either as adding to or detracting from the weight of those of the English courts on the same point."
Nonetheless, there were early efforts to preserve the reasoning of colonial courts, but these efforts were typically characterized as "hasty, indigested things," and the "bane and scandal of the law when considered as a science founded on principle." Before judging too harshly, however, keep in mind that these early reporters were not copying cases with the objective of constructing a scientific legal superstructure. They were merely making notes for their own use, or for the use of a circle of colleagues in a small cohesive bar.
But official law reporters are nothing if not practical, and here is a practical analysis for why official law reporting did not prosper in Colonial America. Printing, which required government "encouragement" in the first place, was centered in New York, Boston, and Philadelphia; printing presses were few and far between in other cities. And historians uniformly characterize the size of the colonial bar as small; English texts on the common law were preferred over native American law books because the English courts, rather than the local courts, were viewed as the source of common law for Colonial America, and the English reports were readily available to lawyers in the colonies. In addition, before the Revolution a colonial lawyer in Virginia would not have felt a need to read what a colonial court in Pennsylvania had to say.
Then as now, there had to be a market for the printing of law books to be successful, and what has just been described – limited printing facilities and a small bar-equates to "no market there." And size of the market throughout time in every jurisdiction has been a major concern of official law reporting.
After Independence, however, the growth of law reporting was amazingly quick as the obvious need for reports of the new American courts became apparent and was fulfilled. Because we are in New York today, it is worth noting that the first seller and publisher of law books reportedly was Stephen Gould, who in 1791 opened a book shop, "At the sign of Lord Coke, opposite the City-Hall," in New York City.
Although Independence did not automatically end the American bar's dependence upon, or desire for, English reports, which enjoyed great popularity throughout the 19th century, by 1800, 11 titles for decisions of the new, post-Independence American courts had been published. This early reporting followed the English practice of reporting by individual reporters, which often resulted in an overlap of the same decisions being included in several different reports. Reports were cited by the name of the reporter rather than the state. Three reporters in the early decades of the 19th century reported decisions of other jurisdictions as well as their own. Dallas, for example, included decisions from Delaware, and his reports are also claimed by Pennsylvania and the federal realm. Because early reports were cited by the name of the reporter, a feeling persisted that the reporter was far more important than the judges who rendered the decisions. Names such as Wheaton, Dallas, and Howard are all better known than some of the 19th century justices of the Supreme Court.
Thus, early official efforts at law reporting were made by individuals without much "official encouragement," and the reporters depended upon the sale of volumes as compensation for their efforts. This commercial basis for official law reporting contrasted sharply with the obligation felt by state governments-similar to predecessor colonial governments-to publish their laws, which were widely distributed to state and county officials through printing contracts, salaried printers, and guaranteed sales. While there are hints that this method of compensation was often inadequate, the office of reporter was seldom vacant, and several states limited the amount reporters could charge for volumes. This type of commercial endeavor for law reporting took a serious blow when the United States Supreme Court ruled that reporters could not claim copyrights to opinion text, and by the end of the 19th century all reporters were on salary, and all reports were printed at the expense of the states.
But truth be known, the editorial burdens for these early reporters were not at all similar to the duties presently attached to official law reporting. The early reporters' responsibility was, in reality, to transcribe the oral rendering of a judgment, then significantly participate in writing, within what we today regard as the court's "opinion," a summary of the facts and the arguments of counsel-in addition to providing the headnotes and a useful index for the volumes. Good reporters even then also checked the accuracy of the citations and the development of the reasoning, which often improved the opinions. Prefaces to early reports lead to the conclusion that reporters considered preparation of the summaries and arguments of counsel to be their most arduous task. There are frequent apologies for the failure to express adequately the statements of counsel, and the first reporter for Alabama asked, in volume 2, that the lawyers furnish him their positions in writing.
Within several decades after Independence, states had widely accepted the obligation to make available the decisions of their supreme courts on the same basis as statutes. Recognition of that obligation resulted in the appointment of reporters whose duty it was to attend the courts and publish their opinions.
A factor of great influence in establishing official law reporting was, dating from the late 18th century, a trend requiring that judges write their opinions rather than merely state them orally, and leave it to reporters to transcribe and enhance the oral opinions. One early example of a state undertaking the expense of publishing judicial opinions was Georgia. An act of 1841 required judges to write out their decisions and place them in the minutes; another provision was a requirement defining the situations in which written opinions were mandatory.
The demands of law practice in Colonial America or the new United States did not force a lawyer to feel that the reports of any courts were needed within a very short time of filing. The majority of English reports contained opinions decided many years before publication of the volume. Publication of single volumes of reports every now and again was satisfactory to meet the needs, regardless of their timeliness. But the need for more timely publication became increasingly more compelling, and satisfying the need for timeliness is cited by historians as a major reason for appointing reporters and providing for the official reporting of opinions.
So as we moved toward the middle of the 19th century, official law reporting was a generally accepted responsibility and the office of reporter was common to the judiciaries of most states, and decisions were being published on an increasingly more timely basis than in the early post-Independence years.
So what went wrong? Lack of timeliness much later became a significant reason in jurisdiction after jurisdiction for "disestablishing" official law reporting and relying, in whole or part, on the alter ego private sector publishers. If ensuring timely publication was a reason for undertaking the obligation of official law reporting, how did lack of timeliness eventually come to be cited as a significant reason for many states abandoning the obligation to officially report the law?
Not only is timeliness – like the small size of the market in any single jurisdiction – one of those perpetual issues that is both current and historic, it also points to the broader issue of adapting official law reporting to changing circumstances – and the harm that can result by not adapting. The dilemma this poses for those directly involved in law reporting is assessing what should change and when. The most detrimental phrase one hears around any court is "we've always done it that way," yet there are core values relating to stability, consistency, and uniformity that should be safeguarded.

Before moving past the Civil War to the latter half of the 19th century, it is worth noting that the early years of law reporting also saw the first emergence of unpublished opinions and questions about what to do with them. Legal literature of the early decades of the 19th century contained frequent references to unreported decisions. Wharton's Digest, published in 1822 in Philadelphia, referred to unreported decisions, as did Nathan Dane in his Abridgement, published in Boston during the 1820's. And a writer in 1822 reported that no Alabama decisions had been printed, yet Alabama judges were required to file written opinions, so the opinions must have existed. And in 1898 it was reported that the judges in New Jersey had omitted 667 decisions by designating them as "Conclusions," but they were nonetheless published in the first 33 volumes of the Atlantic Reporter.
In the decades following the Civil War, much of the basic structure for law reporting, including ancillary products like digests, that were in use, or still viable in some way, at the close of the 20th century were introduced. And those are the decades in which the interplay of official and private sector law reporting became significant, with each greatly affecting the other. Those decades were arguably the most innovative in the history of law reporting, official and unofficial.
During this time, publishing reports became a profitable venture for many law book publishers; contracts for printing state law reports were eagerly sought and commercial publishers undertook a more active sale of the sets. Competition became so keen that lawsuits were instituted to prevent courts from delivering opinions other than to the publishers of the official reports, although the suits were apparently all unsuccessful. Commercial publishers were also finding opportunity and profit in reprinting old state reports. Practically all state reports published in the first half of the 19th century were reprinted as commercial products in the closing decades of that century.
For example, John B. West & Co. announced in 1876 the publication of the first 11 volumes of the Minnesota Reports, edited by James Gilfillan, Chief Justice of the Minnesota Supreme Court. The notice claimed that these volumes "have long been out-of-print and so much called for that we have decided to reprint them." In 1877, New Jersey required its reporter to reprint and renumber all volumes of reports as two series.
The last two decades of the 19th century was an era when publishers became concerned with the growing number of opinions and reports – another of the perpetual concerns we sometimes think of as modern that actually has very long and deep roots. But saying publishers were "concerned" is perhaps not the right word. Official law reporting was, in a sense, enslaved by the increasing volume, and that increasing volume was not matched by correlative increases in support for law reporting, so many states began to fall farther and farther behind in publishing opinions. The private sector saw commercial opportunity in the increasingly untimely publication of official reporters, and also in parsing the growing number of opinions in various ways.
And this is the era – from the end of the Civil War to the turn of the century, in which the single most significant event in the history of law reporting transpired: the inauguration of the National Reporter System by John B. West. The system began with publication of a weekly "Syllabi" in 1876 that, at first, contained only excerpts from opinions with a few items of current interest, but within a few weeks thereafter included the full text, "uniformly indexed, a service previously unavailable." After Minnesota, West included Wisconsin in the Syllabi and, in the face of some competition, established the "North-Western Reporter," containing the full text of each decision from the Minnesota and Wisconsin Supreme Courts. In 1879, Michigan, Iowa, Nebraska, and the Dakotas were added – and the Northwestern Reporter, more or less as we now know it, was on the market. In a significant reference to what was said a few minutes ago about timeliness, the official reporters for each of the states assembled into the Northwestern Reporter were several years tardy in publishing opinions; thus the Northwestern Reporter was reportedly very welcome and very successful in the marketplace.
Other publishers were also noting the success West was having and also launched various regional reporters in the 1880's, but all either failed or were purchased by West.
For example, the Eastern Reporter began in 1885 and was published by William Gould, Jr. & Company in Albany, New York, but in 1887 West purchased the Eastern Reporter and the last Gould volume contained a prophetic editorial note for official law reporting stating that the comprehensive reporting and digesting system proposed by West would "prevail over any local and fragmentary enterprise of the same character."
Meanwhile, out west, the West Coast Reporter was started by the A.L. Bancroft Company in 1884. This reporter included nearly all the states now associated with the Pacific Reporter, and the publication was purchased by West in 1886.
In 1885, West tentatively announced the Atlantic, Southwestern, Southeastern, and Southern reporters-and it first used the designation "National Reporter System" to describe these publications.
By 1902, West was urging the bar to demand that all citations in texts include reference to the National Reporter System. One feature of most book reviews of the period was a statement whether the author referred to the local reports as well as to the regional reporter. In doing so, one reviewer in Wisconsin – offering an anecdote as to how official reporters were becoming handicapped in the marketplace by the inherent power of the National Reporter System – criticized an author for not including cites to the National Reporter System because only four sets of the Nebraska Reports, which were cited in the work under review, were available in Wisconsin.
One feature of West's regional reporters was the fact that West's volumes were issued in parts (i.e., what became advance sheets) that were later reprinted as bound volumes. The advantage of this method of publication was making decisions available at an earlier date than when opinions were issued exclusively as bound volumes. Prior to this innovation, selected decisions were published in newspapers and some periodicals, and other publications included digests of important decisions, but no means existed for the systematic early publication of decisions in a regular form except for a few series. This is how "advance sheets" made their appearance and became a standard of law reporting, both official and unofficial – and certainly a standard for any official reports hoping to survive on its own, but again an example of how official and unofficial law reporting are so juxtaposed in so many ways.
Gradually-the time is not clear – West also took an increased responsibility for cite checking and editing opinions. In sum, the National Reporter System merits much consideration in a discussion focused on official law reporting because it has been the dominant force in law reporting – official and unofficial – for the latter part of the 19th century, all of the 20th century, and is still a force in the early years of the 21st century.
During the same time period in which the National Reporter System was establishing itself, roughly in the latter quarter of the 19th century, ether publishers were attempting to commercially address the proliferation of volumes that was making it difficult for any individual lawyer to have all of the volumes in the office or otherwise available.
Some law publishers experimented with selecting and republishing decisions by subjects. Most of these experiments were unsuccessful because of uneven quality and untimeliness in selecting the opinions for inclusion – most of the attempts were not done by a professional, paid editorial staff – and because lawyers were still "generalists" in that era; thus there was not so much interest in subject-matter collections of opinions.
Another approach to "selective republication" was commenced in 1871 with the American Reports, published by the J.D. Parsons Company of Albany, New York. This series selected decisions from state courts based on editorial criteria, but not limited to a particular subject. The objective of the American Reports was to separate "that which is important from that which is local." The opinions were carefully selected for inclusion of those that presented novel points of law and general practice questions. Some portions of opinions were omitted with appropriate signals and the editor made some cite checking-type corrections.
In 1878 Bancroft-Whitney Company commenced publication of American Decisions, which also involved selective republication of opinions to criteria similar to those applied by the American Reports, except that American Decisions limited its scope to opinions published prior to the scope of coverage in American Reports, and in 1880 Bancroft-Whitney purchased American Reports, then launched, in 1888, the American State Reports, designed to "extend into the future without limit."
At roughly the same time, similar endeavors were undertaken by New York's Lawyers Co-operative Publishing Company and the Edward Thompson Company with a series entitled American and English Annotated Cases. Finally, after obtaining an interest in Bancroft-Whitney, Lawyers Co-operative and Edward Thompson jointly published the first volume of the American Law Reports in 1919 under the imprint of Edward Thompson and Lawyers Co-operative Publishing.
Why is this brief history of commercial law reporting important to a discussion of official law reporting? Because it reflects a clash of philosophies in law reporting that continues to this day: one is devoted to publishing all decisions and the other is based upon reporting selected decisions. The debate continues today without resolution, with the added dimension now of whether "all decisions" really means all decisions that are filed or only those that are filed with the intent to be published.
Also, this history appears to be the conceptual birth of "selective publication," which is now used in virtually all jurisdictions. As editors – then and now – evaluate opinions against the criteria for inclusion in American Law Reports, so do appellate court justices assess their opinions against remarkably similar criteria that determine if the opinions will be published.
Remarkably, in the 20th century, the Great Depression had little discernible impact on official law reporting in the country, but the decades after World War II saw many changes in official law reporting and legal publishing in general. One trend relevant today was the discontinuance of the official reports and the substitution of the National Reporter System in some jurisdictions. Reportedly, the first state to discontinue its series of official reports of its supreme court was Florida, which did so in 1948. The usual argument advanced for such action was the slow rate at which the official reports were published, and the illusory saving of some state funds. Illusory because what of the public? If there is no official reporter in a state, there is generally no competition for printed versions of enhanced opinions, and that still appears to be a consequential segment of the legal information market.
And what of consumer choice as to the way in which opinions are enhanced, and the judiciary's control over what is published and how it is published?
If there are concluding points to draw from this morning's overview, one point is that official law reporting remains a fundamental and compelling responsibility of state governments, and in particular a responsibility of the appellate judiciary anywhere that stare decisis has force and effect.
A second point is that responsibilities encompassed within official law reporting are now largely taken for granted. As far back as 1912, one writer noted the reporter no longer sat in court, listening to oral argument, and making his own notes. Rather he received the opinion of the court and the briefs and merely used "scissors and paste" to make volumes of the reports, as contrasted to the arduous work required of the nominative reporters years earlier.
Thus today the common perception is that the judges write the opinions for which they receive attribution, and the process of printing and publishing opinions – either in traditional paper-based reporters or in computer-based forms-seems automatic to the bench, bar, and public. Overlooked in a process that seems so automatic is the largely anonymous work of reporters making suggestions to ensure the accuracy of opinions before they are filed, then ensuring that those opinions are accurately reported within a body of decisional law that is accurate, functional, and accessible for the bench and bar in each of our particular jurisdictions.
In some ways a volume of Rawle or Wheaton required much more labor by the reporter than does a corresponding current volume of judicial opinions, but if Sir Edward Coke found the number of published volumes of reports burdensome in his time, what would he think of the number of volumes published today, with no decrease in sight. In the last century, one volume contained the decisions of a court for several years, but now some jurisdictions average more than a volume per month.
That raises a third concluding point this morning relating to the increasing volume of opinions and the profession's quest for access. As noted, that has been a longtime issue in law reporting, and it is a significant one today, expressing itself now as an attack on selective publication, which is a practice most of us here today likely consider essential to the functional utility of stare decisis and access to our respective bodies of decisional law. Yet there are significant voices wanting more access to more opinions, and they have seized upon the almost infinite – it seems – capacity of LexisNexis and Westlaw to absorb thousands of opinions per month to argue that it is now rational that all opinions be citable and that the judiciary cease exercising control over what, within each jurisdiction, should be regarded as published. Is there any explanation for this thirst to read and cite everything?
It has been suggested that the use of decisional law has perhaps changed over the years, and that change fuels the drive that all opinions be regarded as published. Increases in the number of decisions starting roughly after 1960 is commonly attributed to increases in the number of judges and the volume of litigation, but maybe there was a change in attitude toward decisional law by the legal profession – a gradual shift of ever-increasing reliance on decisional law. Colonial and early 19th century lawyers relied more on general principles of law, but during the 19th century the appellate function became more precisely delineated and the doctrine of stare decisis assumed greater significance.
That being so, the assumption was that the principles of law could be found in appellate court decisions, and if one could extract those principles, a scientific basis for the law would emerge. If law is "science," then as many "specimens" as possible are needed for extraction of those principles. Is it possible that viewing law as somehow akin to science may be part of the drive for access to more and more opinions, and for eliminating citation prohibitions on opinions not regarded as precedential and published?
Finally, the last juxtaposition to draw between "then" and "now" is with respect to this afternoon's discussion of the future of law reporting and ask – in the same way Gutenberg's invention caused an intellectual revolution in the dissemination of information – if computers will, 500 years from now, be viewed akin to the invention of the printing press?