The slip opinion in Bush v. Gore, which came out on Dec. 12, 2000, contained an important citation to the slip opinion of a Florida Supreme Court case decided on Dec. 11, 2000. Westlaw replaced the Supreme Court's citation to the Florida court's slip opinion with a Westlaw citation. Unfortunately, the Westlaw citation was a cite to a different case than the Supreme Court had cited. This mistake by Westlaw led at least two prominent commentators to falsely accuse the Supreme Court of having offered a nonsensical citation for a crucial proposition.
Nelson Lund Edward A Hartnett wrote: > > The criticisms aimed at West appear to be aimed at those portions of the > reports that do not purport to be the court's own opinion. But bear in > mind that, at least for cases before 1816, the published reports of the > opinions themselves (later reproduced in US Reports) are hardly sacrosanct. > > The Supreme Court did not have an official reporter until Henry Wheaton. > He was informally appointed in 1816, and became the first official reporter > when the act of Congress providing for an official reporter was enacted in > March of 1817. Before then, the publishers of unofficial reporters (such > as Cranch), influenced by marketing decisions, exercised their discretion > in deciding what Court opinions or portions thereof to publish. The > opinions that did appear in the unofficial reporters were often inaccurate > due to delay and expense in reporting. Such failings may have been > "inherent in a system dedicated to the preservation of opinions . . . often > extemporaneously delivered from only the most rudimentary notes." Craig > Joyce, The Rise of the Supreme Court Reporter, 83 Mich. L. Rev. 1291, > 1304-05, 1312 (1985) (discussing the work of Dallas and Cranch). > > As part of an effort to improve speed and accuracy, the Justices promised > Wheaton "any written opinions they might prepare, or notes they might make > in connection with their oral opinions." Id. at 1321. > > It was not until 1834 that the Court provided for the filing of its own > written opinions with its own clerk, "and even then oral opinions were not > invariably reduced to writing." Id. at 1298 n.46. Perhaps not > coincidentally, the Court promulgated the rule providing for the filing of > its own opinions the same week that counsel for the Court's first official > reporter asserted at oral argument in a copyright case he brought against > its second official reporter that "there is no law or custom to put > opinions upon record." Id. at 1377. > > Ed Hartnett > Seton Hall > > Bryan Wildenthal > <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] > Sent by: Discussion cc: > list for con law Subject: West "editing" of Supreme > Court cases > professors > <[EMAIL PROTECTED] > v.ucla.edu> > > 06/11/03 11:53 PM > Please respond to > Discussion list for > con law professors > > It struck me that the messages attached below, forwarded by our library > director, about "editing" of Supreme Court opinions by West, have > considerable relevance for those of us whose craft of constitutional law > requires us to have recourse so often to Supreme Court opinions. I have > noticed similar things in studying numerous old cases for my 14th amendment > articles and forthcoming book. What I have seen is mainly that the West > versions of 19th century cases include a lot of typos and mistakes, and do > indeed omit some of the front material mentioned in the below messages. > Also, the Westlaw on-line versions of all cases, up to the present day, > erase italics, which is a real problem when you want to quote verbatim, > especially for a writer like me who likes to use insertion of emphasis > (always identified as my own or not) as a stylistic tool. > > I recently came to the frustrated conclusion that I will have to photocopy > by hand the original official US Reports versions of more than 50 key cases > that are important sources for my current book. > > I am disturbed to hear that even more extensive modifications appear as > described in the below message. This certainly strengthens my unwillingness > to rely on West, or especially on Westlaw! > > Bryan Wildenthal > > Thomas Jefferson School of Law > > -----Original Message----- > > From: Roger Jacobs [mailto:[EMAIL PROTECTED] > > Sent: Wednesday, June 11, 2003 12:45 PM > > To: [EMAIL PROTECTED] > > Have any of you received reports about the issue noted by Mark Lambert > > which came to me from a colleague monitoring another list? > > I find this Bowdlerization without notice disturbing and feel it should not > > go unnoticed by law librarianship. > > Roger > > >>From: "Mark Lambert" [EMAIL PROTECTED] > > >>Has anyone else encounted the "editing" done by West of early Supreme > > >>Court Reports as noted below? > > >> > > >>Any related experiences, examples, comments? > > >> > > >>Thank you. > > >>Mark > > >> > > >>Mark Lambert > > >>Special Collections and Government Documents Librarian > > >>Fred Parks Law Library > > >>South Texas College of Law > > >>Houston, TX > > >> > > >>From: Thomas H. Martin > > >> > > >>Matter: Does Westlaw corrupt the texts? > > >> > > >>Has anybody else had the experience of comparing a Westlaw-reported case > > >>to the printed account of the case, and finding significant variations? > > >> > > >>I have told you about the 1804 Supreme Court case on maritime salvage, > > >>Mason v. Ship Blaireau, 2 Cranch (6 U.S.) 240, that I use in my > > >>Restitution class. Last night I was reading this case in the Westlaw > > >>version. I suddenly realized that some language that I remembered from > > >>Cranch's report was missing. I then compared the texts more carefully. > > >> > > >>Westlaw modernizes and summarizes Cranch's report, to no good effect that > > >>I can see. Compare: > > >> > > >> > > >>Cranch: The ship Le Blaireau, James Anquetil, master, on a voyage from > > >>Martinique to Bordeaux, laden with sugar, on the 30th of March, 1803, at > > >>10 o'clock at night, in Lat. 35.46 N.-- Long 46. west from Paris, was run > > >>down by a Spanish 64 gun ship, called the St. Julien, commanded by > > >>Francisco Mondragora, which struck the bow of the Blaireau, carried away > > >>her bowsprit, and cutwater close to the seam of the stem, started three > > >>planks of the bends, and all above them, and crushed to pieces the > > >>larboard cat-head. Before morning there were three and a half feet of > > >>water in the hold. . . . > > >> > > >> > > >>Westlaw: The French merchant ship, The Blaireau, laden with sugar and > > >>coffee, and bound from Martinique to Bordeaux, on the night of the 30th > > >>of March, was run down by the Spanish sixty-four gun ship, called the St. > > >>Julien, in latitude 35 degrees 46' north 46 degrees west from > > >>Paris. The Blaireau was greatly injured by the rencounter [sic., > > >>"rencounter" in original], and before morning there were three feet of > > >>water in her hold. > > >> > > >>Westlaw has reduced important points to summaries and has entirely > > >>omitted the arguments of counsel which are so important and > > >>characteristic a feature of early Supreme Court reports. The overall > > >>effect is to put a Reader's Digest version of Cranch's report before the > > >>Westlaw user with no warning that the Westlaw text is not authentic. > > >> > > >>I find this startling indeed. > > LawLibDir mailing list > > [EMAIL PROTECTED] > > http://lists.washlaw.edu/mailman/listinfo/lawlibdir
