The American Judiciary

by Simeon E. Baldwin

The official reports of the courts have some of the faults of officialism. They often do not appear until long after the decisions which they chronicle have been made and their general make-up is sometimes unworkmanlike and unscientific. It requires rare gifts to make a good reporter of judicial opinions. He must have the art of clear and concise statement; the power to select what is material and drop the rest; and the faculty of close analysis of abstract reasoning.[Footnote: Four of the reporters of the Supreme Judicial Court of Massachusetts have been appointed justices of that court, largely in consequence of their good work in reporting. A good reporter always has the making of a good judge.] Many of our reporters also are practicing lawyers of no special training for the work, and who give to it but a portion of the year.

The modern sense of the value of time, of scientific treatment of whatever can be treated scientifically, and of uniformity in scientific methods led toward the close of the nineteenth century to competition in reporting. Private publishing houses undertook the prompt publication, in scientific arrangement upon a uniform plan, of the opinions of the courts. This work began in 1879. The result has been that the series of official reports of the Circuit Court of Appeals of the United States has been discontinued, and that the decisions of all our other appellate courts are now twice reported. One publishing house has grouped the States into clusters, issuing for each cluster its own series of reports, known, respectively, as the Atlantic, the Northeastern, the Northwestern, the Southeastern, the Southern, the Southwestern and the Pacific Reporters. The States forming each group have been selected mainly because they were neighbors geographically, but partly from commercial reasons. Thus Massachusetts, which would naturally be assigned to the Atlantic Reporter, has been put into the Northeastern; and such inland States as Kansas and Colorado find their place in the Pacific Reporter. All the reported decisions of all the States in each group are printed in pamphlet form weekly, as they may be handed down, in chronological order; and every few months the whole issued as a bound volume. In this way, for a trifling sum a copy of any opinion of any American court of last resort can be had in a few days or weeks after its announcement, and a lawyer's library can, at slight expense, be furnished with the decisions not only of his own State but of several others having not unlike laws and institutions.

The multiplication of American reports makes judicial precedents of decreasing value to the American lawyer. English cases are cited as authority far less frequently than they were before the middle of the nineteenth century. The omnipotence of Parliament and the free hand with which that has been exerted to change the common law have tended to separate English from American jurisprudence. Our written Constitutions have perpetuated here ideas of government and property which England does not recognize. Hence American precedents are of more use than English. But American precedents are becoming so numerous that the advocate who seeks to avail himself of them is tempted to cite too many and to examine them with too little care. In each State its own reports are the expression of its ultimate law. With these every member of its bar must be familiar. But the courts before which he argues listen to him with more satisfaction and greater benefit if he deals with the principles of law rather than with foreign precedents which may or may not correctly apply them.[Footnote: See a valuable statistical article on "Reports and Citations" in Law Notes for August, 1904.]

Not every opinion which is delivered is officially reported. In most States the court has and exercises the power of directing that such as they may deem of no substantial value to the profession at large shall not be. Many are simply applications of familiar rules which obviously control. Opinions of that kind interest only the lawyers in the cause. In the unofficial reports, however, such cases are sure to appear and the bar is divided in opinion as to whether they should not also be given a place in the official ones.

It is not always easy for the court or the reporter to determine what decision may thereafter be relied on as a precedent. Repeated instances have occurred in which such a use has in fact been made and properly made of some not noted in the regular reports, and not infrequently they have subsequently been inserted in them.[Footnote: In the centennial volume (Vol. CXXXI) of those of the Supreme Court of the United States, one hundred and twelve opinions are printed, the first delivered over fifty years before, which previous reporters had thought best to omit, and two hundred and twenty-one more such are published in Vol. CLIV. Whoever runs them over will be apt to think that the previous reporters were right.] There is also in case of an opinion not to be officially reported a loss of a valuable safeguard against unsound decisions. A judge writes with more care and examines the points of law which may be presented more closely if he writes for the public and for posterity.

On the whole the prevailing sentiment is that the reasons for repressing some are stronger than those for publishing all judicial opinions. It will be few only that, under any circumstances, will be omitted. The leading lawyers in every State are expected to run over, if they do not read, every case in every new volume of its reports. Every case dropped lightens this task. It helps to keep indexes of reports and digests of reports and legal treatises within reasonable limits. It cuts into an accumulating mass of material, most of which must, in any event, so far as points of law are concerned, be a mere repetition of twice-told tales, that is becoming so vast in the United States as to becloud rather than illuminate whoever seeks to know what American law really is.

If reporters will not select and discriminate between adjudged cases publishers can and will. Many sets have been prepared and issued in recent years of selected cases on all subjects taken from the official reports of all the States. Their professed aim has been to include all worth preserving. In fact, they have naturally been guided to a considerable extent by commercial considerations. To every lawyer the leading cases in his own State are of the first importance. He is not likely to buy any compilation in which a number of these do not appear, even if intrinsically, as statements of law, they may be of no great value. Hence in the collections in question the rule of selection is often the rule of three, and they are apt to contain a certain proportion of the decisions of every State.

The leading sets are the "American Decisions," running from 1760[Footnote: Long after the publication of Kirby's Reports in 1784, some unofficial reports were published of cases decided in colonial courts prior to any which he included.] to 1869; the "American Reports," from 1869 to 1886; the "American State Reports," from 1886 to the present time, which three sets include over two hundred and fifty volumes and nearly 40,000 opinions; and the "Lawyers' Reports Annotated," now extending over more than sixty volumes, the first of which was published in 1888, and contains no cases reported prior to the preceding year.

Spencer's rule of social evolution that all progress is from the homogeneous to the heterogeneous tends steadily and inexorably in the United States to lessen the value of judicial reports out of the State in which the cases were decided. Each of forty-five different commonwealths is building upon legal foundations that are not dissimilar, but some of them are advancing far faster than others, and none proceed at exactly the same rate or on exactly the same lines. They are building by statute, by popular usage and by judicial decision. Heterogeneity is most marked in legislation and it tells most there. Whoever looks over a volume of reports will find a large proportion of the cases turning upon some local statute. An important index title is that of "Statutes Cited and Expounded." In Vol. 138, for instance, of the Massachusetts Reports (a volume selected at random for this purpose), 223 statutes or sections of statutes are noted as having been made the subject of remark in the 170 cases which it contains. Almost all are Massachusetts statutes, a very small proportion of which have been re-enacted elsewhere.

Appellate courts thus forced at every turn to study with care into the effect of local legislation, much of which, to get at its meaning, must be traced back historically through various changes during a long course of years, and in the older States sometimes for centuries, listen unwillingly to citations from decisions of other States which are even remotely affected by the statutes that may be there in force.