Proceedings of the Second International Symposium on Official Law Reporting
23, 24-27 (July 30, 2004)

Charles Dewey Cole, Jr.
Newman Fitch Altheim Myers, P.C.
What struck me about Mr. Williams's presentation today was his comment that the Incorporated Council reports about 350 cases each year in the Weekly Law Reports. The ICLR's model is selective reporting of judgments. Obviously, it reports almost all English decisions from the appellate committee of the House of Lords – between 50 and 70 each year – and a fair number of the decisions of the judicial committee of the Privy Council (though it is not always easy to see which decisions apply generally in England and Wales). Immediately below those courts within the judicial hierarchy sits the Court of Appeal, a court that disposes of, based on the latest available figures, 2,600 full appeals each year in criminal cases and about one half that number in civil cases. I should add that the numbers do not indicate the volume of business handled by the court because appeals in England and Wales usually are taken by leave, leave is granted only in about one third of the applications, and hearing applications for leave to appeal take up a large portion of the court's work. So the Court of Appeal's power to grant or deny leave is itself a filter on what it decides and, in turn, what is eligible to be published in the law reports. Below the Court of the Appeal sit the various trial courts, including the High Court and the Crown Court. These courts, especially the Administrative Court, which is part of the Queen's Bench Division of the High Court and operates as something of an appellate court in judicial-review cases, are a fertile source of decisions for a reporter. So, as you can see, the reporter's task of selecting 350 cases from a wealth of decisions provides a filter so that unnecessary material does not end up in the law reports.
It is useful to contrast the model followed by the ICLR with the reporting of decisions of the courts of the United States and the practice of New York's Law Reporting Bureau. Turning to the United States courts first, it is sobering to look at the continued growth of the Federal Reporter, Third Series, of which 37 volumes were published in 2003 and another 19 volumes have been published so far in 2004. Each volume contains approximately 150 reported cases. In addition, each volume of the Federal Appendix includes another 400 to 600 cases, though not as many of those volumes are published each year. That means we add over 5,000 reported decisions of the United States courts of appeals and far more so-called unpublished decisions to the law reports each year. This is a very different model from that followed in England and Wales. New York's situation is not much better. By statute, the State Reporter is charged with reporting "every cause determined in the court of appeals and every cause determined in the appellate division of the supreme court, unless otherwise directed. " In addition the State Reporter has discretion to report decisions of trial courts. Mr. Spivey would have to give you the number of reported cases to set up a comparison with the model followed in England and Wales. But a quick glance at the most recent volume of the Appellate Division Reports, Third Series, shows pages and pages of memorandum decisions from the Appellate Divisions. And a quick glance through those decisions shows that very few add anything of substance to the law of the State of New York. We are reporting far more decisions than are reported by the ICLR, even though the population of England and Wales – 52 million – is more than 2½ times the size of the State of New York.
The size of the English legal system is roughly comparable to New York's; and this is particularly so when comparing the intermediate appellate courts (an exact comparison at the appellate level is difficult to make in light of the differences in appellate procedure; but the number of lords justices of appeal is about the same as the number of justices appointed to the Appellate Divisions).
It is a fair question to ask whether a system that comprehensively reports the decisions of appellate courts, such as the model followed in New York and, depending on how one classifies the Federal Appendix, the model followed in the inferior appellate courts of the United States, is the way forward. Reporting decisions and adding to the body of reported decisions make it increasingly difficult for lawyers, judges, and academics to find the decisions that they are looking for, to say nothing about their attempts to keep up to date on the truly important decisions. After all, the larger the haystack, the harder finding the needle.
On a personal level, I am gratified whenever I find memorandum decisions of the Appellate Divisions that are on all fours with a case that I am handling. But I am not so sure that the number of times that I have found such a case is exceeded by the number of times that I have read memorandum decisions that are understandable only after turning to the record from the trial court. In short, there is much to be said for the model followed by the ICLR, and reporters surely realize that part of their job consists of serving as a filter.
Let me close with a few additional reflections. Those of you who are familiar with the history of the ICLR will know that its work began on November 2, 1865 when Council-appointed reporters "took their seats in the several Courts at Westminster Hall, in Lincoln's Inn and at the Rolls in Chancery Lane." The driving force behind setting up the ICLR was very much the same as the impetus behind appointing a State Reporter in New York: much of the law reporting of the day was not accurate, and lawyers and judges could not get in one place a set of authoritative decisions. The ICLR has served as a model for law reporting in very much the same way as New York's State Reporters have done so throughout the 19th and 20th centuries. Though, as we have seen, different models of reporting were adopted.
I think, though, that the widespread availability of judicial decisions in transcript form, which is common throughout England and Wales on BAILII and Lawtel, coupled with the proliferation of single-subject or specialist law reports is a threat to the model of selective law reporting. Similarly, the availability of decisions of the courts of the United States in electronic form through PACER and on court Web sites and the availability of decisions of trial courts through the Unified Court System's Web site and online through New York's Law Reporting Bureau suggests a fresh look at what is being reported and the form of those reports. The widespread availability of judgments in transcript form in England and Wales and the similar ability to obtain decisions of both trial and appellate courts in the United States and in New York through the Internet may, though, enhance the law reporter's role. If decisions are widely available to lawyers, judges, and the public from an official or semi-official source, then the law reporter can concentrate on reporting, by which I mean analyzing, summarizing, and digesting only those decisions that add to the body of the law. Other judicial decisions still would be available (and would be available through either a search engine or an indexing scheme) should anyone wish to retrieve them.