Good and Bad Law Reporting.
1o5
GOOD AND BAD LAW REPORTING. By Seymour D. Thompson. I. What Ought and what Ought Not to be Reported. — The first inquiry under this head will naturally be, What ought and what ought not to be reported. The fact that this is determined in most cases by statute, and not by the court, and still less by the reporter himself, does not make the inquiry irrelevant here; especially since, in the unofficial reports with which the shelves of our libraries, public and pri vate, are crowded, it is determined neither by the legislature, nor by the court, nor by the reporter, but by the bookseller. Even where the question is determined by the legislature it is sometimes determined badly, of which the greatest State in the Union exhibits a painful example. I refer to the decisions of the nisi prius courts in New York, which are officially reported and printed at public expense, under the title of " Miscellaneous," and cited " Misc." The impropriety of printing reports of the deci sions of the inferior courts in their ordinary work is so obvious as to create the suspi cion of a job in the statute providing for it. And such there was in this case. The irony of fate was such that the lawyer who got the job through for the purpose of being appointed reporter failed in his questionable ambition, another being appointed in his stead. No decisions ought to be reported at the expense of the public, nor at all, except those which, in our Anglo-American jurisprudence, have the force of judicial precedents. Although the case-made law of our ancestors was largely built up by the decisions of eminent judges at nisi prius, and although this was almost entirely true of the criminal law,— yet, with the great mul tiplication of reports and of precedents, it has come to be the general rule in England, and it ought to be in this country, that no
decision has the force of a precedent except the decision of a court of appeal. A thor ough and painstaking judge at nisi prius may, and sometimes does, write an opinion upon some new and very important ques tion which is pressing for solution,— such as, let us say, for example, the question at what date the recent federal bankruptcy law went into effect. Such opinions are valuable to the profession, and may well be reported in the law journals and in the unofficial reports, such as the "Federal Reporter"; but, as a general rule, there is absolutely no excuse for reporting decisions rendered at nisi prius, and especially charges to juries, and taxing the profession with buying them and crowding the shelves of their libraries to make room for them. Then the burden of reporting all the decisions of appellate courts of last resort is so seriously felt that several States have adopted the plan of the court or the judges marking those opinions which are deemed to be of minor importance, " not to be officially reported." I happen to think now that this is the case in New York, in Pennsylvania, in Kentucky, and in New Jersey. I have failed to discover any prin ciple upon which the judges of those States perform this duty. The theory, the rhyme, the reason upon which they proceed in eliminating what is not to be reported, or what is not to be reported in full, is as hard to get at as is that of a Russian press cen sorship. There was a time in the St. Louis Court of Appeals when the policy was pur sued of reporting one half of the decisions rendered by the court, and relegating the other half to abstracts made by the reporter. Each judge took the opinions which had been written by him during the term, and went over them and marked the half of them which he thought the least important, or
