Well, Greg, if you would like to perform a study, I suggest you review
the opinions of the 1st and 4th circuits. Their on-line opinions quite
clearly indicate amendments.
I have not done a numerical study, but my sense of it is that under a
quarter have any revision, and if you eliminate minor typographical
errors and misspellings of names of counsel, you are down to 5% or so, if
that. It is extremley rare to have an entire paragraph deleted. Most
changes are changing wording in a sentence. At the Supreme Court level,
I have the markups of the 1990 term. Sorry, no added or deleted
paragraphs, and indeed, I do not recollect even a deleted or inserted
sentence from the slip opinion to the final US Reports.
If I thought the facts would in any way affect your views, I could
perform an analysis of the 1st and 4th Circuits.
As to West claiming a large number of changes or corrections, that is
really an issue of semantics. If West adds a Supreme Court Reporter
citation to a US Reports citation, they call that a correction. If they
delete the slip pagination, that is also called a correction. Then,
having delted the slip paginiation, if they correct a cross-reference
(like, supra, page 2 of slip opinion) to the West cross-reference (like
supra, 444 F.3d 323), they call that a correction too. Similarly,
deleting the docket number of a case below is called a correction ... I
guess, since it forces more use of other West products and services. All
of this, of course, West contends, requires an enormous amount of creativity.
As far as I can tell as to the last few months, West has not deleted any
paragraphs in federal circuit opinions, with or without the permission of the court (it is hard to
imagine them doing it without the court's permssion).
Anyway, I would say that the 1st and 4th circuit handle their amendments
fairly good, except they keep the same computer file name for the
original and amended version. And, the amendments usually refer to a
page number in the slip opinions. That is not a problem with the 4th
circuit, because they hard code the page number. The first circuit does
not and it is not always so easy to find what page 20 is in an opinion.
Of course, West just obliterates everything and it is not clear what
correction the court made. But, those courts fortunately have a record.
As to when a court makes a change, some courts amend on their own motion
months and months after the original opinion!!!
All that is really needed is for the courts to stop pretending they are
perfect and indicate when an opinion was corrected, as does the 1st
circuit and 4th circuit, but not other courts where other views abound.
Anyway, your prediction of what will happen on bulletin boards is not
supported by the facts so far. Go check it.
<comment of the following precedes>
On Thu, 19 Jan 1995, Koster wrote:
> No one has published any statistics on the number of opinions that get
> revised. TAP claims it is minuscule, but doesn't say how they concluded
> that. West says it is far larger than people realize; they ought to know,
> but they haven't documented it either.
>
> My suspicion is that it will become much more important as we move toward
> immediate electronic dissemination of the judge's first draft. At present,
> there is a sufficient delay until the first real publication to allow judges
> to make all the major changes they want, and West catches most of the minor
> things. When the court clerks start posting directly to electronic bulletin
> boards for public access, we'll all see the "raw" opinions. The number of
> those that receive some revision before the final edition is likely to be
> pretty large.
<the comment of the following follows .. this is known as precede and follow>
Well, Greg, as to your next point, re California opinions, a lot of
people think there is something scary about depublishing rather than
merely vacating an opinion. After all, there should be a historical
record of what the California Supreme Court does. Similarly, when a
federal court opinion is vacated, we leave it on the CD-ROM, but mark it
as vacated. Sometimes, West pulls an opinion from the reporter before it
gets to the bound copy. It seems to me that what a court has done, and
how it changes its mind or reexpresses its views should remain part of
the record: first, to provide a sense of accountability and second, to
provide useful guidance to practitioners. I do not think I would take a
postion in a brief before a court that the court had taken and repudiated
in a vacated opinion which just happened to be no longer of record. You
may find this the improper attribution of judicial intent ... I call it
common sense.
Alan Sugarman
HyperLaw
sugarman@panix.com
>
> There is also another category, such as the California system where a higher
> court reviews all opinions even where the case is not appealed, and
> "decertifies" some from precedential value. Presently, we are spared seeing
> almost all trial court opinions and many lower appellate opinions because the
> print reporters select only those of lasting importance. Presumably, judges
> know which cases are likely to be selected for publication and are more
> careful in writing the opinions. As we move toward electronic publication of
> *every* opinion, we're going to see a lot more badly written ones, and I
> suspect more states may move to a system like California's.
>
> So the likelihood is that in the future this issue of revisions to opinions
> will be a fairly widespread phenomenon.
>
> Greg Koster
> CUNY Law School
>
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