Anne Klinefelter is definitely on to something. West's publication of the Federal Appendix coincides with what Bob Berring has called the "loss of cognitive authority" of West's system for publishing case law. Berring writes:
"What is certain is that the National Reporter System is losing its cognitive authority. Once most people no longer need the comfort of knowing that legal information is somewhere in paper, the National Reporter System is doomed as a touchstone. The editorial work that goes into the American Digest System will survive. The Key Number System is already morphing into a component of KEYCITE, but the National Reporter System as the database upon which it is all based will grow dustier and dustier and more fragile, and like Volume 175 from 1899, will fall to pieces."
Robert C. Berring, Legal Information and the Search for Cognitive Authority, 88 Calif. L. Rev. 1673, 1703 (December 2000). Part of the problem of West's loss of cognitive authority is the availability of both "published" and "unpublished" opinions on the Web. Id. at 1701-03. I guess that West's publication of the Federal Appendix is an attempt to make at least some "unpublished" opinions "published," more or less (at least for certain purposes in certain Federal circuits). So the Federal Appendix could be seen as a rear-guard action of West to preserve some of its cognitive authority -- there will be West citations, the law will continue to be reflected in the Key Number System, etc., at least for some "unpublished" decisions.
I'm not sure if West's attempt to preserve some of its cognitive authority is a good or bad thing for the state of legal information, the law librarian community, the commonweal, etc. The mere fact that it coincides with West's long-term financial interests certainly does not necessarily mean its a bad thing. (Obviously my critical faculties have been fogged by the good time I've had at those West parties at AALL.) But it is clear that all of this has significant implications for law librarianship and the law generally.
I see from Stanley Conrad's posting that a 9th Circuit panel has issued a ruling on unpublished opinions. It will be interesting to see if this issue gets taken up by the full circuit en banc. The other circuits (besides the 8th and 9th) are likely to consider this issue also. There was a symposium at last year's Association of American Law Schools conference on the topic of authority, unpublished opinions, etc., at which Bob Berring spoke, along with a federal judge and another academic. I know AALL has been monitoring this issue also; the law librarian community definitely needs to stay tuned.
Luis Acosta
Reference Librarian
Howard University Law Library
2929 Van Ness Street, N.W.
Washington, D.C. 20008
(202) 806-8175
lacosta@law.howard.edu
----- Original Message -----
From: Carol Avery Nicholson
To: law-lib
Sent: Tuesday, September 25, 2001 8:11 AM
Subject: [Fwd: [Fwd: Federal Appendix-new West pub]]
Anita,
Our library has decided to purchase one copy of the Federal Appendix. Below is a message from our Associate Director (who is not on lawlib) regarding why we decided to subscribe. Of course, this message is not intended to recommend that other libraries subscribe to the title.
Carol
Anne Klinefelter wrote:
Carol,
My understanding is that the 8th Circuit recently stirred things up in the "unpublished" opinions arena with an opinion that was later vacated on other grounds, leaving the issue unresolved. The earlier opinion, Anastasoff v. United States, 223 F.3d 898 (8th Cir. Mo. 2000) allowed the government to rely on an unpublished opinion that the court felt was the only case on point. The court said that preventing the use of this case as precedent violated Article III of the Constitution.
Some law review articles have explored this case and suggested that another court or the same 8th Circuit court will soon be presented with this issue and may decide that preventing citation to unpublished opinions is unconstitutional.
Perhaps this case and the controversy surrounding it has led to the publication of these "unpublished" opinions.
Anne
Anne Klinefelter
Associate Director and Clinical Assistant Professor of Law
Kathrine R. Everett Law Library
University of North Carolina at Chapel Hill
klinefel@email.unc.edu; (919) 962-6202
Carol Avery Nicholson wrote:
Anita Shew wrote:
Hello colleagues, Recently we received a volume of a new West reporter series called Federal Appendix. There was no notice with it, nor was there any introduction in the volume. This includes cases from the U.S. Courts of Appeal that are not being published in Fed.3d. and are designated "unreported". If they are not to be cited by the courts then why are they being "published" in a book form?Can anybody shed any light on this? I have no intention of keeping this set. And I have seen no word from West about this.Anita Anita K. Shew, Director
Butler County Law Library
10 Journal Sq. Suite 200
Hamilton, OH 45011
(513) 887-3456
FAX (513)887-3696
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