In my weekly reviews, I have been noting when a decision is going "to be published."
I realize I should probably be more clear about this.
What does it mean when a federal decision is going to be published? At this point at the district court level, it means very, very little.
But here it is: As you have probably seen in lawyer commercials seeking to represent you when you slip or fall or in those riveting television shows and movies about lawyers, lawyers often have shelves and shelves worth of books. These books typically contain two different things: statutes and published cases. If the lawyer practices in federal court, the lawyer will have the United States Code and the books that contain the published federal cases.
The federal district court cases are published in the Federal Supplement, known as the F.Supp., and now they are up to the F.Supp.2d. The Circuit Court cases are published in the Federal Reporter, designated as F., F.2d or F.3d.* The Supreme Court cases, all of which are published, appear in the United States reporter, known as U.S. (There are several different books in which the Supreme Court cases are published, but most lawyers will solely own the U.S. reporter).
*Just as an aside, I have previously discussed published opinions vs. the summary order at the Circuit Court level. Publication does matter at that level as summary orders do not have much precedential value.
In the olden days before computers completely took over the legal profession (I'd say approximately the mid-1990's), lawyers would spend most of their time reading these books to research cases. So it was highly significant which district court cases got published in F.Supp. The case would then appear in those books that you saw on a lawyer's shelf.
But now, it doesn't matter which cases end up in F.Supp., at least for lawyers. It appears that almost every district court decision finds its way onto either Westlaw or Lexis. And for those that don't, they are available publicly through PACER. They were always available publicly, but not as accessible as they are now. They are just a few clicks (or screen touches) and keystrokes away. So it is now pretty irrelevant if the case actually appears in F.Supp. The lawyer now has access to pretty much everything that the district courts produce. For this reason, not many lawyers are actually going to look at the actual books at this point. At least for research purposes. But books should always be consulted for editing purposes. It is always wise to make confirm that the version of a case that appears on westlaw or lexis is the way it appears in the books. Lawyers around here have caught the occasional mistake on Westlaw.
Just as important as availability, the unpublished decisions have equal precedential value as the published ones. So long as you can track down the decision, it can help support your argument.
I guess at this point, for a district court case to get published, the biggest impact it will have is that it will have a nicer citation. As opposed to the clunky unpublished electronic citation format, it will have the much cleaner: Plaintiff v. Defendant, 600 F.Supp.2d 500 (SDNY 2009). So I guess that's something.
Okay, Okay. I know I am taking a way too lawyer-centric view of the world. Cases must still get published since lawyers are not the only ones that need to read these cases. Most pro se litigants, particularly prisoners, still only have access to these cases through the books. The public also will have access to these books. So the publishing business will go on.
So that leads me to a more important question: what criteria is being used to decide which cases are receiving this honor of getting published in the reporter? In the couple of months that I have been doing the weekly reviews, I have not seen a pattern as to how cases end up published. There are definitely some that have had a really interesting legal issue and deserved the honor of publication. But there are some that have had absolutely nothing particularly noteworthy about them that have been endowed with the nicer citation format.
Flipping that coin over, there have been some really interesting cases, including some grants of habeas corpus which in and of itself makes it a noteworthy case, that have not ended up published.
I guess some of this could be explained by the process. When I was clerking, I learned that the process (at least in SDNY) was that a judge would designate certain decisions for publication. This designation acted more like a request. A pretty strong request, but still just a request. Which meant that it was left to the F.Supp. publisher to decide, in a deferential fashion, whether or not to actually follow through with the designation. I am going to assume that the process remains the same.
So it means that maybe the judges are not asking that certain interesting cases get published. Or maybe the publisher is deciding against publishing those interesting cases, despite a request. I don't understand why a judge would withhold an interesting case from publication, or why the legal publisher is deciding against publishing an interesting decision. But it is the uninteresting cases that baffle me more. Why are cases that say nothing noteworthy getting published? Why would a judge want that decision published? Doesn't the publisher know better? It's hard to understand. And it is even more confusing since I understand that there are an enormous number of decisions out there. So the publisher needs to discriminate. It just reinforces the belief that something is off.
In the end, I hope that the judges who do the designation and the people who screen the habeas cases for publication begin to publish the most noteworthy cases, particularly the habeas grants. It would certainly be more helpful to pro se litigants (and the public in general) if more of the noteworthy cases end up with the nicer citation format.
I realize I should probably be more clear about this.
What does it mean when a federal decision is going to be published? At this point at the district court level, it means very, very little.
But here it is: As you have probably seen in lawyer commercials seeking to represent you when you slip or fall or in those riveting television shows and movies about lawyers, lawyers often have shelves and shelves worth of books. These books typically contain two different things: statutes and published cases. If the lawyer practices in federal court, the lawyer will have the United States Code and the books that contain the published federal cases.
The federal district court cases are published in the Federal Supplement, known as the F.Supp., and now they are up to the F.Supp.2d. The Circuit Court cases are published in the Federal Reporter, designated as F., F.2d or F.3d.* The Supreme Court cases, all of which are published, appear in the United States reporter, known as U.S. (There are several different books in which the Supreme Court cases are published, but most lawyers will solely own the U.S. reporter).
*Just as an aside, I have previously discussed published opinions vs. the summary order at the Circuit Court level. Publication does matter at that level as summary orders do not have much precedential value.
In the olden days before computers completely took over the legal profession (I'd say approximately the mid-1990's), lawyers would spend most of their time reading these books to research cases. So it was highly significant which district court cases got published in F.Supp. The case would then appear in those books that you saw on a lawyer's shelf.
But now, it doesn't matter which cases end up in F.Supp., at least for lawyers. It appears that almost every district court decision finds its way onto either Westlaw or Lexis. And for those that don't, they are available publicly through PACER. They were always available publicly, but not as accessible as they are now. They are just a few clicks (or screen touches) and keystrokes away. So it is now pretty irrelevant if the case actually appears in F.Supp. The lawyer now has access to pretty much everything that the district courts produce. For this reason, not many lawyers are actually going to look at the actual books at this point. At least for research purposes. But books should always be consulted for editing purposes. It is always wise to make confirm that the version of a case that appears on westlaw or lexis is the way it appears in the books. Lawyers around here have caught the occasional mistake on Westlaw.
Just as important as availability, the unpublished decisions have equal precedential value as the published ones. So long as you can track down the decision, it can help support your argument.
I guess at this point, for a district court case to get published, the biggest impact it will have is that it will have a nicer citation. As opposed to the clunky unpublished electronic citation format, it will have the much cleaner: Plaintiff v. Defendant, 600 F.Supp.2d 500 (SDNY 2009). So I guess that's something.
Okay, Okay. I know I am taking a way too lawyer-centric view of the world. Cases must still get published since lawyers are not the only ones that need to read these cases. Most pro se litigants, particularly prisoners, still only have access to these cases through the books. The public also will have access to these books. So the publishing business will go on.
So that leads me to a more important question: what criteria is being used to decide which cases are receiving this honor of getting published in the reporter? In the couple of months that I have been doing the weekly reviews, I have not seen a pattern as to how cases end up published. There are definitely some that have had a really interesting legal issue and deserved the honor of publication. But there are some that have had absolutely nothing particularly noteworthy about them that have been endowed with the nicer citation format.
Flipping that coin over, there have been some really interesting cases, including some grants of habeas corpus which in and of itself makes it a noteworthy case, that have not ended up published.
I guess some of this could be explained by the process. When I was clerking, I learned that the process (at least in SDNY) was that a judge would designate certain decisions for publication. This designation acted more like a request. A pretty strong request, but still just a request. Which meant that it was left to the F.Supp. publisher to decide, in a deferential fashion, whether or not to actually follow through with the designation. I am going to assume that the process remains the same.
So it means that maybe the judges are not asking that certain interesting cases get published. Or maybe the publisher is deciding against publishing those interesting cases, despite a request. I don't understand why a judge would withhold an interesting case from publication, or why the legal publisher is deciding against publishing an interesting decision. But it is the uninteresting cases that baffle me more. Why are cases that say nothing noteworthy getting published? Why would a judge want that decision published? Doesn't the publisher know better? It's hard to understand. And it is even more confusing since I understand that there are an enormous number of decisions out there. So the publisher needs to discriminate. It just reinforces the belief that something is off.
In the end, I hope that the judges who do the designation and the people who screen the habeas cases for publication begin to publish the most noteworthy cases, particularly the habeas grants. It would certainly be more helpful to pro se litigants (and the public in general) if more of the noteworthy cases end up with the nicer citation format.
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