Posted by Eugene Volokh:
*Kelly v. Amtrak* Opinions, Which Were Removed from Lexis and Westlaw Pursuant
to a Settlement:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250722321
[1]The Legal Intelligencer (Law.com) reports:
The confidential settlement in Klein v. Amtrak -- a case in which
two trespassing teenagers climbed atop a parked train car and
suffered serious burns when they got too close to a 12,000-volt
catenary wire -- included an unusual provision that called for the
trial judge to vacate all of his published opinions and have them
removed from Lexis and Westlaw....
A few months after holding an hourlong oral argument, the 3rd U.S.
Circuit Court of Appeals agreed in late July to remand the case to
the trial judge, U.S. District Judge Lawrence F. Stengel, who, in
turn, agreed to vacate eight of his published opinions and to
"direct" Lexis and Westlaw to remove them from their databases.
Gretchen DeSutter, a spokeswoman for Westlaw, said Stengel's
request to remove the opinions would "absolutely" be honored, and
that any instance in which a judge vacates a published opinion
automatically leads to its withdrawal from Westlaw's database.
Calls to Lexis were not returned by press time.
It seems to me that it would be very helpful for scholars to have
these opinions available somewhere, even if lawyers might find them
less useful because they were withdrawn. I've therefore downloaded
them and placed them here:
1. [2]Klein v. Amtrak, Dec. 16, 2005.
2. [3]Klein v. Amtrak, Feb. 9, 2006.
3. [4]Klein v. Amtrak, Mar. 31, 2006.
4. [5]Klein v. Amtrak, Jul. 13, 2006.
5. [6]Klein v. Amtrak, Aug. 16, 2006.
6. [7]Klein v. Amtrak, Mar. 31, 2008.
Of course, it would be best if they were stored somewhere where they
could more easily be found. Perhaps it might be some central
repository for such documents that professors, students, and lawyers
will know to search when they're looking for such things. Or perhaps
if such deletion of opinions proves to be quite rare, some journal
will want to publish these, so that the opinions will be findable
using Lexis and Westlaw law review article queries even if not the
case law queries. Or perhaps someone else is already providing copies
of the opinions, in which I'll happily link to those copies. So I'd
love to hear others' suggestions about what should be done in cases
such as this.
(By the way, even district court opinions that haven't been withdrawn
are generally only persuasive precedent, not binding precedent; and an
opinion withdrawn pursuant to a settlement shouldn't lose any of its
persuasive force. But I expect that most judges would still decline to
pay attention to an opinion that the authoring judge has vacated,
which is why I think the opinions are probably mostly useful for
scholars, not for practitioners.)
References
1. http://www.law.com/jsp/article.jsp?id=1202433145853&thepage=1
2. http://volokh.com/files/klein_v_amtrak_dec_16_2005.pdf
3. http://volokh.com/files/klein_v_amtrak_feb_9_2006.pdf
4. http://volokh.com/files/klein_v_amtrak_mar_31_2006.pdf
5. http://volokh.com/files/klein_v_amtrak_jul_13_2006.pdf
6. http://volokh.com/files/klein_v_amtrak_aug_16_2006.pdf
7. http://volokh.com/files/klein_v_amtrak_mar_31_2008.pdf
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