As the U.S. Supreme Court\u00a0begins\u00a0a fresh October\u00a0term, the lag\u00a0between its\u00a0release of decisions and their publication, the topic\u00a0of a previous post<\/a>, has grown to embarrassing length. Today,\u00a0decisions do not appear with their volume and page number assignments until four and one\u00a0half to five years\u00a0after they have been handed down. That critical information is provided to those\u00a0who require\u00a0it only when decisions\u00a0are printed and distributed in a paperback “Preliminary Print” edition. The Preliminary Print covering the period Oct. 3, 2011 through January 17, 2012 (565 U.S. – Part 1) was published just this year and received by the Cornell Law Library\u00a0on August 3, 2016.<\/p>\n Other courts, federal and state, obliged to follow Supreme Court precedent are left to cope\u00a0with this immense\u00a0citation gap. United States v. Jones<\/em><\/a>, decided on January 23, 2012, held that installing a GPS\u00a0device on a vehicle in order\u00a0to track\u00a0the vehicle’s movements constitutes a search under the Fourth Amendment. The case\u00a0has, as of this date, been referred to\u00a0in at least 998 subsequent judicial opinions. None has been able to cite the case or\u00a0its key passages using the official,\u00a0public domain format: “___ U.S. ___”.<\/p>\n A few states that still publish print law reports are themselves years behind, although none\u00a0so egregiously as the nation’s highest court. The most recent bound volume of the Nevada Reports<\/em> concludes at the end of 2011<\/a>.\u00a0The volume and page numbers for individual decisions, assigned in preliminary prints, are, however, available up through May 2013.<\/p>\n When the Nevada Supreme Court cites decisions of the U.S. Supreme Court for which\u00a0the official citation is available it uses\u00a0only that, no\u00a0parallel references. An August 2016 Nevada case, McNamara\u00a0v. State<\/em><\/a>, illustrates the court’s\u00a0preferred format:<\/p>\n [W]e also reject McNamara’s argument that the failure to submit the question of territorial jurisdiction to the jury violated his Sixth Amendment rights as articulated in Apprendi v. New Jersey<\/em>, 530 U.S. 466 (2000).<\/p><\/blockquote>\n The Supreme Court’s citation lag forces at least temporary use of an unofficial, commercial source and citation scheme. The author of a 2013 Nevada Supreme Court decision, Holmes v. State<\/a><\/em>, relying\u00a0on a\u00a0U.S. Supreme Court’s decision of the year before, cited it as follows:<\/p>\n This argument fails under Howes v. Fields<\/em>, 565 U.S. __, __, 132 S. Ct. 1181, 1192-94 (2012), because the interrogation was not custodial ….<\/p><\/blockquote>\n Neither this Nevada decision nor the cited Supreme Court decision, Howes<\/em>, is yet out in a preliminary print. There is no reason to imagine that\u00a0Nevada’s publication delay has been\u00a0induced by that in the nation’s capital. Yet\u00a0because the two are both so far\u00a0behind\u00a0the\u00a0Nevada Supreme Court staff will, in all likelihood, be able to fill in the skeletal U.S. Reports<\/em> reference and drop the parallel Supreme Court Reporter<\/em>\u00a0cite when\u00a0Holmes v. <\/span>State<\/em> is readied for final publication.<\/p>\n Most U.S. courts publish\u00a0their precedent in\u00a0final form with a degree of promptness that precludes\u00a0citation of recent Supreme Court decisions to U.S. Reports<\/em>. That is especially\u00a0true of jurisdictions that have shifted from print to\u00a0official digital publication. Illinois appellate decisions move from preliminary to final version\u00a0quite swiftly. The average elapsed time is less than two months. Furthermore, from\u00a0the moment of\u00a0release any court, lawyer, or commentator can cite to an Illinois Supreme Court decision in official form. That is because, at\u00a0release, each decision carries complete\u00a0public domain citation information. Because of that jurisdiction’s\u00a0commendable speed, any\u00a0Illinois decision that includes\u00a0a citation to or quotation from\u00a0an opinion\u00a0of the U.S. Supreme Court less than four years old cannot employ\u00a0a full\u00a0U.S. Reports<\/em>\u00a0citation. It must instead rely on a commercial service for the permanent\u00a0effective reference, as in the following:<\/p>\n This court did not intend to overrule a significant body of case law by this single sentence. \u201cWe resist reading a single sentence unnecessary to the decision as having done so much work.\u201d Arkansas Game & Fish Comm\u2019n v. United States<\/em>, 568 U.S. ___, ___, 133 S. Ct. 511, 520 (2012).<\/p><\/blockquote>\n Richter v. Prairie Farms Dairy, Inc.<\/em>, 2016 IL 119518<\/a>, \u00b6\u00a033.<\/p>\n New Mexico decisions face the same problem and adopt\u00a0the same approach. See<\/em> Morris v. Brandenburg<\/em>, 2016-NMSC-027<\/a>, \u00b6 23. The Oklahoma Supreme Court doesn’t waste space with a\u00a0skeletal “__ U.S. __, __”. See<\/em> Okla. Coalition for Reproductive Justice v. Cline<\/em>, 2016 OK 17<\/a>, \u00b6 3. That also holds for\u00a0the print-published opinions of the Supreme Judicial Court of Massachusetts. See\u00a0Commonwealth v. Arzola<\/em>,\u00a0470 Mass. 809<\/a>, 818 (2015).<\/p>\n Four\u00a0years ago, confronted by publication delays comparable to\u00a0those now afflicting the\u00a0U.S. Reports<\/em>, Nebraska’s Supreme Court established\u00a0an Electronic Publications Committee. Its\u00a0charge was\u00a0to devise\u00a0a plan for cutting loose from\u00a0the costs and delays generated by\u00a0publishing books that few wanted to buy. The scheme it developed<\/a>\u00a0was implemented as of the beginning of this year. By rule<\/a>\u00a0the Nebraska Supreme Court declared print publication of\u00a0the Nebraska Reports<\/em>\u00a0and\u00a0the\u00a0Nebraska Appellate Reports\u00a0<\/em>complete, ending with volume 274 of the former (which contains 2008\u00a0decisions up through July 2) and volume 15 of the latter (cutoff date, October 8, 2007). Those volumes were, in fact, the most recently\u00a0published at the time the committee began its work. Physical distribution of advance sheets ceased with the fulfillment\u00a0of all outstanding\u00a0subscriptions this\u00a0June.<\/p>\n State administered case report\u00a0publication continues in Nebraska but now solely in digital form. Liberated\u00a0from the demands of print production, sale, and distribution, the Nebraska Reporter of Decisions, Peggy Polacek, and her staff have already chopped years\u00a0off the state’s publishing backlog. Eleven virtual volumes of the Nebraska Reports<\/em> and five of the Nebraska Appellate Reports<\/em> were completed\u00a0in final form over the\u00a0summer. They reside, fully authenticated, within the\u00a0Nebraska Appellate Courts Online Library<\/a>\u00a0site \u2013 an open repository of all\u00a0published opinions of the Nebraska Supreme Court and Nebraska Court of Appeals.<\/p>\n Having\u00a0years of decisions already in the publication pipeline, Nebraska opted not to alter the jurisdiction’s existing\u00a0format or citation scheme. Decisions and their quoted or cited portions are still to be identified by volume and page numbers. Unlike other states that have taken their case law\u00a0digital, Nebraska did\u00a0not switch to\u00a0medium-independent case designations or\u00a0paragraph numbers. Nebraska’s\u00a0continuing\u00a0reliance on a print-oriented citation scheme\u00a0does not mean that\u00a0those relying on its\u00a0precedent must\u00a0await a decision’s being bundled with others for its citation information. From the moment of release, published Nebraska decisions carry their\u00a0volume number and ultimate pagination. State v. Liner<\/em><\/a>, released on September 13, 2016, is to be cited: “24 Neb. App. 311”. It runs through page 322 of volume 24. As was true when print was the official medium, content on page 318 of the “advance” version will remain on page 318 of the final “certified” electronic version. When the next Court of Appeals decision is published it will be “24 Neb. App. 323”. \u00a0(The beginning of each decision starts a fresh page.) Every one thousand pages or so one digital volume is closed and the next, begun.<\/p>\n Unlike the “advance” opinions released by Nebraska’s appellate courts through its reporter’s office, the “slips”\u00a0issued\u00a0by the U.S. Supreme Court on the day of decision are not integrated compilations of the separate opinions they may contain preceded by\u00a0the reporter’s syllabus. Each component, including that syllabus, has a full case heading. \u00a0They may be stapled together in print and merged into a single electronic\u00a0file, but syllabus, majority, concurring, and dissenting opinions are all paginated separately. Any\u00a0cross-references they contain\u00a0\u2013 majority opinion to dissent, for example\u00a0\u2013 must take a temporary form that addresses\u00a0that awkward fact. Would it add too\u00a0much time to the pre-release work flow to have the reporter’s office pull these pieces\u00a0together as Nebraska’s does, stripping off the separate headings, running consecutive\u00a0pagination through all constituent opinions,\u00a0and\u00a0conforming the internal cross-references? It shouldn’t. That done, the only further step required\u00a0to eliminate the present\u00a0citation lag would be\u00a0to assign cases to a volume and run\u00a0their pagination in a\u00a0continuous sequence\u00a0rather than resetting each at “1”. In other words if the first decision of a term runs to eight pages, start the second at\u00a0page “9”. If the second\u00a0consists of a 4-page syllabus, 21-page majority opinion, and 21-page dissent, commence the third at page “55”, and so on. If all of this were to delay public release of the Court’s\u00a0decisions\u00a0a few days or even a week, the harm would be minimal, the gain, enormous.\u00a0The reporter’s office already maintains consistent pagination between the preliminary print edition of a volume’s constituent parts and the ultimate bound versions. The Nebraska approach would simply entail\u00a0moving that\u00a0one stage earlier\u00a0in the publication process.<\/p>\n Nothing in this set of editorial reforms would imply\u00a0that the G.P.O. need cease printing volumes of the U.S. Reports<\/em>. The principal\u00a0aim would simply be to prevent the\u00a0huge delays in print publication from denying timely\u00a0access to official\u00a0citation information. It is true that\u00a0the very factors that drove Nebraska to designate the final electronic version of its published decisions “official” lie behind the tardy\u00a0publication of the U.S. Reports<\/em>. Budgets are tight, and the use of, and therefore\u00a0demand for, print law reports has plummeted. It is\u00a0quite possible\u00a0that if Supreme Court decisions carried their official citation data from the moment of release and final electronic versions were certified weeks or months rather than years later, even greater delays in the\u00a0production and distribution\u00a0of bound volumes of those opinions might\u00a0follow. But who would care? Today, nearly all\u00a0case research is done online. In the present environment\u00a0the timeliness with which\u00a0authoritative, citable electronic\u00a0versions of precedent are made available\u00a0is vastly\u00a0more important than rate at which those same opinions\u00a0are physically archived in a set of books.<\/p>\n Because\u00a0of the size\u00a0of the Court’s\u00a0publication\u00a0lag many of its own citations to prior decisions are temporary and incomplete. For example, in the last decision of the 2015 term, Voisine v. United States<\/a><\/em>, the slip version of\u00a0Justice Kagan’s majority opinion includes these\u00a0case references:<\/p>\n Slotting\u00a0Voisone<\/em>\u00a0into specific pages of a virtual\u00a0volume 579 of the U.S. Reports<\/em>\u00a0or the first decision of this coming term into the beginning of\u00a0volume 580 need not await completion of volumes 565 through 578. On other hand, because of the frequency\u00a0of the Court’s self-citation, recent decisions cannot be put in final form without\u00a0the reporter’s office working its way relentlessly forward through the existing\u00a0backlog.<\/p>\n As noted above, once\u00a0liberated from print production Nebraska’s reporter of decisions has been able to move through that state’s accumulated unpublished decisions\u00a0with impressive speed. It should, perhaps,\u00a0also be noted that while the U.S. Reports<\/em>\u00a0may be\u00a0more years behind than were the Nebraska Reports<\/em>\u00a0when the Nebraska judiciary began work on that state’s\u00a0electronic publication plan, measured in numbers of opinions the state’s challenge\u00a0was greater. During the U.S. Supreme Court’s past term it rendered only 81 decisions of which 17 were per curiam, five of them one-liners. During calendar 2015\u00a0Nebraska’s appellate courts delivered\u00a0260 decisions to the state’s reporter of decisions for publication.<\/p>\n Bound volume 563 of the U.S. Reports<\/em>, running\u00a0through June 6, 2011,\u00a0has, since late June, been\u00a0on a\u00a0shelf in\u00a0the Cornell Law Library. Meanwhile, the Supreme Court’s web site<\/a> has not pushed past volume 561 (covering the end of the 2009 term). Undoubtedly, the two missing pdf files are held\u00a0at the Court somewhere; they were prepared there. But which office has the responsibility for placing them online? Apparently, none has ever been charged with providing electronic access to the preliminary print versions of decisions, which in the current pattern\u00a0of dissemination\u00a0are the first to provide full citation information.<\/p>\n One\u00a0development of\u00a0the last term provides modest\u00a0grounds for optimism. Having been called out in 2014 for the undisclosed post-release substitution of revised slip opinions<\/a>, the Court’s web site\u00a0has begun to\u00a0note when such changes have occurred and to provide a\u00a0means for determining the exact nature of the revision<\/a>.<\/p>\n In today’s environment, reducing the time involved in bringing\u00a0the Court’s decisions to print, whether preliminary or final, is no\u00a0longer\u00a0an important goal. Making\u00a0them promptly available to the public, the legal profession, and the nation’s other courts in final citable form is and that\u00a0requires\u00a0a serious program of\u00a0electronic publication.<\/p>\n Most of the steps outlined here could be taken by Supreme Court staff without legislation. Following Nebraska’s lead all the way to cessation of print law report publication would, however, require that Congress amend the U.S. Code to authorize electronic publication as an alternative to print rather than a faster complementary track. Last year the Nebraska legislature passed such a bill<\/a>, prepared by the state’s judicial branch.<\/p>\n For now 28 U.S.C. \u00a7 411<\/a>\u00a0requires that: “The decisions of the Supreme Court of the United States … be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition ….” In recent years the\u00a0“as soon as practicable” proviso has effectively\u00a0swallowed the\u00a0mandate of prompt\u00a0printing and distribution. Ironically, in light of present realities, the act of 1817,\u00a0which\u00a0first established the reporter position, required publication of the Court\u2019s decisions “within six months of their rendering<\/a>.” Fifty years ago, when judges and lawyers still looked cases up in books, bound volumes of the U.S. Reports<\/em>\u00a0appeared within a year of the last decision they contained.<\/p>\n The time is ripe\u00a0for the U.S. Supreme Court (indeed, for the full federal judiciary) to devote\u00a0serious attention to the altered\u00a0landscape of case reporting.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The Supreme Court \u2013 Opening\u00a0a New Term in Serious Arrears As the U.S. Supreme Court\u00a0begins\u00a0a fresh October\u00a0term, the lag\u00a0between its\u00a0release of decisions and their publication, the topic\u00a0of a previous post, has grown to embarrassing length. Today,\u00a0decisions do not appear with their volume and page number assignments until four and one\u00a0half to five years\u00a0after they have […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[26,12,11,41],"tags":[13,14,27],"class_list":["post-652","post","type-post","status-publish","format-standard","hentry","category-authentication","category-cases","category-neutral-citations","category-official","tag-cases-2","tag-neutral-citations-2","tag-official"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/652","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=652"}],"version-history":[{"count":78,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/652\/revisions"}],"predecessor-version":[{"id":731,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/652\/revisions\/731"}],"wp:attachment":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=652"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=652"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=652"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}What Can\u00a0Others\u00a0Do When the Lead Horse Is So Slow?<\/h2>\n
Adopt a Similar Pace<\/h3>\n
Ignore and Keep Moving<\/h3>\n
One Possible Solution for the Court:\u00a0Take a (Virtual) Page from\u00a0Nebraska’s\u00a0Law Reports<\/h2>\n
Could the U.S. Supreme Court Do the Same?<\/h2>\n
Dealing with the\u00a0Deep Backlog of Skeletal Citations<\/h2>\n
\n
A\u00a0Need to Take Electronic Publication More Seriously<\/h2>\n
Would Congressional Action Be Required?<\/h2>\n