The Reporter s Head-Note.
215
THE REPORTER'S HEAD-NOTE. By Seymour D. Thompson. HPHE editor of the " Albany Law Journal," 1 himself experienced as a re porter, having expressed his unqualified approval of an article of mine in a previous number of the "Green Bag"2 on the subject of " Common Errors and Defects in LawReporting," I am encouraged to draw from a dusty pigeon-hole the sequel to that article, — prepared at the same time, and rejected by one editor as not good enough for his publi cation, — and place it " where it will" do the most good." I know that there is here a difference of opinion, and a very wide difference of prac tice. My judgment is that the true office of a reporter's head-note is to state, in brief form, the propositions of law actually decided in the case, and that beyond that he ought not to go. In this respect the head-notes made by Mr. Irving Browne in the cases reported in the " Albany Law Journal " and in the "American Reports," of which he was formerly the editor, are as good models as any which I can now call to mind. The thing which is to be avoided here is the effort to put into the head-note everything which is recited in the opinion. Where this is attempted the head-note, instead of in forming the reader what is decided in the case, presents a jumble of decision and dicta, from which no one can tell what is decided until he reads the entire report. My friend Mr. Freeman, reporter to the Su preme Court of Illinois, — one of the veteran reporters (perhaps the oldest and most ex perienced now living), a learned man and an admirable gentleman, — has always been in this regard, I must take leave to say, open to criticism. I understand that he justifies the practice of making very long head-notes on the ground that the judges and the mem1 40 Alb. L. J. 341. 2 1 G. B. 436.
bers of the bar in that State prefer head-notes constructed on that plan. In some of the States the law requires the judges who write the opinions to furnish head-notes for their decisions. If I am not mistaken, this is the law in Ohio, Georgia, and Kansas. Some of the decisions of those courts, notably some of those of the Kansas Court, show that this work could be better done by a skilful reporter than by an over worked judge, although the judge himself may have been the author of the opinion. Many of the head-notes of the decisions of the Supreme Court of the United States are known to have been made by the judge who wrote the particular opinion. It has been notably the practice of Justices Miller, Field, and Bradley to furnish to the reporter headnotes of their opinions in important cases. These head-notes very often contain, in a condensed and running form, an outline of the whole course of argument employed by the judge in the opinion, 'and do not confine themselves to a statement of the point de cided by the court, as they should. It is true that in many judicial decisions, especially in cases in equity and admiralty, the court decides no particular legal proposi tion, but applies to a complicated state of facts certain well-known principles or rules of decision. Such cases ought not to be re ported at all. Neither the judge nor the prac titioner is aided in any way by the reports of such decisions. All that mass of cases which involve the interpretation of particular con tracts or the interpretation of particular forms of expression in wills, — which relate to mere instances, — ought to be consigned to oblivion. Nevertheless, where the law requires all judicial decisions to be pub lished, such cases have to be reported in some way; and the reporters have to make the best head-note of such a decision which
