During 2013 Congress passed four pieces of legislation that made \u201ctechnical corrections\u201d to scattered provisions of the U.S. Code. \u00a0Unsurprisingly, tidying up drafting errors of this sort is not a high Congressional priority.\u00a0 For ten years there have been two slightly different versions of 5 U.S.C. \u00a7 3598<\/a>; for nearly eighteen, two completely different versions of 28 U.S.C. \u00a7 1932<\/a>.\u00a0 The Code contains cross-references to non-existent provisions<\/a> and myriad other typos.\u00a0 Some are humorous (as, for example, the definition of “nongovernmental entities” that includes “organizations that provide products and services associated with … satellite imagines<\/b>\u201d<\/a>).\u00a0 The various compilers of Congress\u2019s work product do their best to note such glitches where they exist and, if possible, suggest that body\u2019s probable intention.\u00a0 They do not, however, view themselves as at liberty to make editorial corrections.<\/p>\n Pretty much the same holds for regulations adopted by federal administrative agencies.\u00a0 When a final regulation contains inept language, a typo, or some other drafting error, the Office of the Federal Register publishes it \u201cas is\u201d.\u00a0 The authoring agency must subsequently correct or otherwise revise by publishing an amendment, also in the Federal Register<\/i>.\u00a0 Until the problem is caught and addressed through a formal amendment, the original version is \u201cthe law.\u201d\u00a0 In the meantime, all who must understand or apply it \u2013 agency personnel, the public, and courts \u2013 must interpret the puzzling language in light of the agency\u2019s most likely intent.\u00a0 The Federal Register<\/i> is filled with regulatory filings making \u201ccorrecting amendments.\u201d\u00a0 A search on that phrase limited to 2013 retrieves a total of eighty.\u00a0 For a pair of straightforward examples see 78 Fed. Reg. 76,986<\/a> (2013).<\/p>\n With judicial opinions the situation is startlingly different.\u00a0 When judges release decisions containing similar bits of sloppiness, the process for correcting them is far less certain and, with some courts, far less transparent.\u00a0 What sets courts apart from other law enunciating bodies in the U.S. is their widespread practice of unannounced and unspecified revision well after the legal proceeding resulting in a decision binding on the parties has concluded.\u00a0 Several factors, some rooted in print era realities, are to blame.<\/p>\n To begin, most U.S. appellate courts began the last century with the functions of opinion writing and law reporting in separate hands<\/a>.\u00a0 Public officials, commonly called \u201creporters of decisions\u201d cumulated the opinions issued by appellate courts and periodically published them in volumes, together with indices, annotations, and other editorial enhancements.\u00a0 Invariably, they engaged in copy editing and cite checking decision texts, as well, subject to such oversight as the judges cared to exercise.\u00a0 The existence of that separate office together with the long period stretching from opinion release to final publication in a bound volume induced judges to think of the opinions they filed in cases, distributed to the parties and interested others in \u201cslip opinion\u201d form, as drafts which they could still \u201ccorrect\u201d or otherwise improve.\u00a0 That mindset combined with the discursive nature of judicial texts, their attribution to individual authors, and judicial egos can produce a troubling and truly unnecessary level of post-release revision.\u00a0 At the extreme, judicial fiddling with the language of opinions doesn\u2019t even end with print publication.\u00a0 Dissenting in Hamdi v. Rumsfeld<\/i>, 542 U.S. 507 (2004), Justice Thomas wrote: \u201cThe principle \u2018ingredient\u2019 for \u2018energy in the executive\u2019 is \u2018unity.\u2019\u201d (The quoted fragments are from No. 70 of the Federalist Papers<\/i><\/a>.)\u00a0 That was June 2004.\u00a0 The sentence remained in that form in the preliminary print issued the following year and the final bound volume which appeared in 2006.\u00a0 Volume 550 of the United States Reports<\/i><\/a> published in 2010, however, contains an \u201cerratum\u201d notice that directs a change in that line of Thomas\u2019s dissent, namely the substitution of \u201cprincipal\u201d for \u201cprinciple.\u201d\u00a0 Six years after the opinion was handed down, it is hard to understand who is to make that change and why — beyond salving the embarrassment of the author.\u00a0 None of the online services have altered the opinion.<\/p>\n \u00a0 Judges, even those on the highest courts, make minor errors all the time.\u00a0 What they seem to have great difficulty doing is letting them lie.\u00a0 This seems particularly true of courts for which print still serves as the medium for final and official publication.\u00a0 The Kansas Judicial Branch web site<\/a> explains about the only version of opinions it furnishes the public:<\/p>\n Slip opinions are subject to motions for rehearing and petitions for review prior to issuance of the mandate. Before citing a slip opinion, determine that the opinion has become final. Slip opinions also are subject to modification orders and editorial corrections prior to publication in the official reporters. Consult the bound volumes of Kansas Reports and Kansas Court of Appeals Reports for the final, official texts of the opinions of the Kansas Supreme Court and the Kansas Court of Appeals. Attorneys are requested to call prompt attention to typographical or other formal errors; please notify Richard Ross, Reporter of Decisions \u2026.<\/p><\/blockquote>\n Since the path from slip opinion to final bound volume can stretch out for months, if not years<\/a>, the opportunity for revision is prolonged.\u00a0 Moreover, unless the court releases a conformed electronic copy of that print volume, changes, large or small, are hard to detect.\u00a0 Interim versions, print or electronic, only compound the difficulty.\u00a0 For those who maintain case law databases and their users this can be a serious problem, one some of them finesse by not bothering to attempt to detect and make changes reflected in post-release versions<\/a>.<\/p>\n A shift to official electronic publication inescapably reduces the period for post-release revision since decisions need no longer be held for the accumulation of a full volume before final issuance.\u00a0 On the other hand, staffing and work flow patterns established during the print era can make it difficult to shift full editorial review, including cite, and quote checking to the period before a decision\u2019s initial release.\u00a0 Difficult, but not impossible \u2013 the Illinois Reporter of Decisions, Brian Ervin, who retired earlier this year<\/a>, appears to have achieved that goal when the state ceased publishing print law reports in 2011.\u00a0 Reviewing the Illinois Supreme Court’s decisions of the past year using the CourtListener site in the manner described below, reveals not a single instance of post-release revision.<\/p>\n Procedures in some other states that have made the same shift specify a short period for possible revision, following which decisions become final.\u00a0 Decisions of the Oklahoma Supreme Court, for example, are not final until the chief justice has issued a mandate in the case and that does not occur until the period for a rehearing request has passed. \u00a0Decisions are posted to the Oklahoma State Court Network<\/a> immediately upon filing, but they carry the notice: \u201cTHIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.\u201d\u00a0 Once the mandate has issued, a matter of weeks not months, that warning is removed and the final, official version is marked with the court\u2019s seal<\/a>.\u00a0 In New Mexico, another state in which official versions of appellate decisions are now digital, a similar short period for revision is embedded in court practice.\u00a0 Decisions are initially released in \u201cslip opinion\u201d form.\u00a0 \u201cOnce an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk \u2026. [During the interim the] New Mexico Compilation Commission<\/a> provides editorial services such as proofreading, applying court-approved corrections and topic indices.\u201d\u00a0 As a result of that editorial process, most decisions receive minor revision.\u00a0 For a representative example, see this comparison of the slip and final versions<\/a> of a recent decision of the New Mexico Supreme Court (separated in time by less than a month).\u00a0 Once a decision can be cited, it is in final form<\/a>.<\/p>\n Typically, when legislatures and administrative agencies make revisions the changes are explicitly delineated.\u00a0 Most often they are expressed in a form directing the addition, deletion, or substitution of specified words to, from, or within the original text.\u00a0 Except in the case of post-publication errata notices, that is not the judicial norm.\u00a0 Even courts that are good about publicly releasing their revised decisions and designating them as \u201csubstitute\u201d,\u201d changed\u201d, or \u201crevised\u201d (as many don\u2019t) rarely indicate the nature or importance of the change.\u00a0 So long as all versions are available in electronic form, however, the changes can be determined through a computer comparison of the document files.\u00a0 Such a comparison of the final bound version of Davis v. Federal Election Commission<\/i>, 554 U.S. 724 (2008) with the slip version, for example, reveals that at page 735 the latter had erroneously referred to a \u201c2004 Washington primary.\u201d\u00a0 The later version corrects that to \u201c2004 Wisconsin primary\u201d \u2013 simple error correction rather than significant change.<\/p>\n More disturbing, by far, are:<\/p>\n Any jurisdiction which, like Kansas, still directs the public and legal profession to print for the final text of an opinion without making available a complete digital replica is guilty of the first.\u00a0 Less obviously this is true of courts which, like the U.S. Court of Appeals, leave distribution of their final, edited opinions to the commercial sector.\u00a0 Less conspicuous and, therefore, even more troubling are revisions that courts implement by substituting one digital file for another before final publication.\u00a0 A prior post<\/a> noted one example of this form of slight-of-hand at the web site of the Indiana Judicial Branch.\u00a0 But the Indiana Supreme Court hardly stands alone.\u00a0 Thanks to the meticulous record-keeping of the CourtListener online database<\/a> such substitutions can be detected.<\/p>\n Like other case law harvesters, CourtListener regularly and systematically examines court web sites for new decision files.\u00a0 Unlike others it calculates and displays digital fingerprints for the files it downloads and stores the original copies for public access.\u00a0 When a fresh version of a previously downloaded file is substituted at the court\u2019s site, its fingerprint reveals whether the content is at all different.\u00a0 If the fingerprint is not the same, CourtListener downloads and stores the second file.\u00a0 Importantly, it retains the earlier version as well.\u00a0 Consequently, a CourtListener retrieval of all decisions from a court, arrayed by filing date, will show revisions by substitution as multiple entries for a single case. \u00a0Applied to the decisions of the U.S. Supreme Court during calendar 2011 this technique uncovers ten instances of covert revision.\u00a0 Happily, none involved major changes.\u00a0 The spelling of \u201cPittsburg, California\u201d was corrected in a majority opinion by Justice Scalia, \u201cpetitioner\u201d was changed to \u201crespondent\u201d in a majority opinion by Justice Kennedy, \u201cpolite remainder\u201d in a Scalia dissent became \u201cpolite reminder\u201d, and so on.\u00a0 The perpetually troublesome \u201cprincipal\/principle\u201d pair was switched in a dissent by Justice Breyer.<\/p>\n Most post-release opinion revisions involve no more than the correction of citations and typos like these, but the lack of transparency or any clear process permits more.\u00a0 And history furnishes some disturbing examples of that opportunity being exploited.\u00a0 Judge Douglas Woodlock describes one involving the late Chief Justice Warren Berger in a recent issue of Green Bag<\/i><\/a>.\u00a0 Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States<\/i>, 561 U.S. 358 (2010).\u00a0 The slip opinion file now at the Court\u2019s web site<\/a> carries no notice of the revision beyond the indication in the \u201cproperties\u201d field that it was modified over two weeks after the opinion\u2019s filing date. \u00a0To see the original footnote 31 one must go to the CourtListener site<\/a> or a collection like that of Cornell\u2019s LII<\/a> built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.<\/p>\n In this era of immediate electronic access and widespread redistribution, courts should strive to shift all editorial review to the period before release, as Illinois has done.\u00a0 Judges need to learn to live with their minor drafting errors.\u00a0 Finally, whatever revision occurs prior to final publication, none should occur thereafter.\u00a0 In the present age issuance of errata notices years after publication is a pointless gesture.<\/p>\n While the final versions of U.S. Supreme Court decisions are much too slow in appearing<\/a>, when they do appear they are released in both print and a conformed electronic file<\/a>.\u00a0 Most U.S. courts are like those of Kansas and fail to release the final versions of their decisions electronically.\u00a0 Furthermore, some that do, California<\/a> being an example, release them in a form and subject to licensing terms that severely limit their usefulness to individual legal professionals and online database providers.<\/p>\n At least twice this year the Indiana Supreme Court released opinions that omitted the name of one of the attorneys.\u00a0 As soon as the omission was pointed out, it promptly issued \u201ccorrected\u201d versions.\u00a0 In one case<\/a> (but not the other<\/a>) the revision bears the notation that it is a corrected file, with a date. \u00a0In neither case is the nature of or reason for the change explained within the second version.\u00a0 As noted above, too many courts, including the nation\u2019s highest, make stealth revisions, substituting one opinion text for a prior one without even signaling the change.<\/p>\n United States v. Hayes<\/i>, No. 09-12024 (11th Cir. Dec. 16, 2010)<\/a>, discussed in a prior post<\/a>, provides a useful illustration of this commendable practice.\u00a0 United States v. Burrage<\/i>, No. 11-3602 (8th<\/sup> Cir. Apr. 4, 2014)<\/a>, falls short, for while it explicitly vacates the same panel\u2019s decision of a month before, it fails to explain the basis for the substitution.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" A. Background: How legislatures and agencies handle revision 1. Revision by Congress When Congress enacts and the President signs a carelessly drafted piece of legislation it becomes the law.\u00a0 All must live with, puzzle over, and, in some cases, find an ad hoc way to cite what Congress has done.\u00a0 Congress can clarify the situation […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,19,10],"tags":[13,20,30,4],"class_list":["post-157","post","type-post","status-publish","format-standard","hentry","category-cases","category-regulations","category-statutes-2","tag-cases-2","tag-regulations-2","tag-revision","tag-statutes"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/157","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=157"}],"version-history":[{"count":22,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/157\/revisions"}],"predecessor-version":[{"id":183,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/157\/revisions\/183"}],"wp:attachment":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=157"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=157"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=157"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"tech_correction\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2014\/04\/tech_correction.jpg\")
<\/a><\/p>\n2. Agency typos and omissions<\/h3>\n
![\"revised_reg\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2014\/04\/revised_reg.jpg\")
<\/a><\/p>\nB. Judicial opinions \u2013 An altogether different story<\/h2>\n
![\"erratum\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2014\/04\/erratum.jpg\")
<\/a><\/p>\n![\"sct_revision\"](\"https:\/\/citeblog.access-to-law.com\/wp-content\/uploads\/2014\/04\/sct_revision.jpg\")
<\/a><\/p>\n\n
C. Some unsolicited advice directed at public officials who bear responsibility for disseminating case law (reporters, clerks, judges)<\/h2>\n
1. Minimize or eliminate post-release revision<\/h3>\n
2. If decisions are released in both preliminary and final versions, make them equally accessible<\/h3>\n
3. Label all decision revisions, as such, and if the revision is ad hoc rather than the result of a systematic editorial process, explain the nature of the change<\/h3>\n
4. If revision goes beyond simple error correction, vacate the prior decision and issue a new one (following whatever procedure that requires)<\/h3>\n