Asked to contribute to a symposium on legal publishing in 1889, John B. West—a former traveling book salesman from St. Paul, Minnesota, who in 1876 founded what became the dominant legal publishing company in the United States—explained the necessity of published court opinions. “‘What is the law on this point?’’ he wrote. “This is the question that perpetually recurs during the professional life of every lawyer, in whatever lines his practice may lie, and whether he has to argue cases as an advocate before courts, or advise clients as a counselor in his office. On the degree of certainty with which the practitioner answers the question, must depend in great measure his success or failure.”

In modern times, lawyers and others involved with the federal courts have taken for granted that the most significant judicial opinions will promptly be published and made available to the public. The doctrine of stare decisis (“to stand by things decided”) rests upon the availability of such opinions. The American legal tradition of reliance on precedent developed over time, however, as it was not always possible for judges and lawyers to know how other courts had decided a legal issue. For nearly a century after the establishment of the federal courts, case reporting was scattered, disorganized, and far from comprehensive. Federal judges frequently did not issue written opinions, and federal courts did not always have reporters to compile judicial decisions. The practice of law as it exists in the modern federal courts is in significant part the result of the evolution in case reporting that took place after 1880, largely on the initiative of John West.

Upon independence, it was far from a given that judicial decisions would be published in the United States. Such reports had no American antecedents. In the colonial era, while statutes were sometimes published, lawyers and judges relied on books and case reports imported from England to understand the common law. Colonial attorneys typically maintained handwritten notes containing legal principles gleaned from statutes and court decisions, and some judges kept bench books with notes on the cases they heard. These practices continued after independence, and no volumes of published opinions appeared in the United States until 1789, after the Constitution went into effect.

Those who pioneered the reporting of judicial decisions in the early republic had several purposes in mind. One goal was certainty and uniformity in the law. Case reports assisted in the dissemination of legal principles and encouraged consistency in the administration of justice. Another aim was transparency in judicial decision making; in the earliest years after independence, many Americans were suspicious of common-law adjudication and feared judicial tyranny. Written records of judicial decisions and the reasoning behind them could help to calm these fears. As one scholar noted, “reports made the common law part of an ongoing, communal discussion conducted in the light of day.”

William Cranch, the second unofficial reporter of decisions for the Supreme Court of the United States after Alexander J. Dallas, remarked upon some of these principles in the preface to his first volume of reports, published in 1804: “Much of that uncertainty of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country, may be attributed to the want of American reports. . . . Uniformity . . . can not be expected where the judicial authority is shared among such a vast number of independent tribunals, unless the decisions of the various courts are made known to each other. Even in the same court, analogy of judgment can not be maintained if its adjudications are suffered to be forgotten.” Published opinions served as a check on judges, he added, by limiting the range of their discretion. A judge could not easily depart from prior cases without having a good reason for doing so.

In the late eighteenth and early nineteenth centuries, reporting of federal decisions lagged far behind that of state courts, for two reasons. First, early federal reporters were individuals acting solely on an entrepreneurial basis. Congress made the reporter of decisions of the Supreme Court a statutory, salaried position in 1817, and every state eventually created a similar position for its own courts. Having a statutory officer charged with reporting court decisions ensured the performance of the task without regard to its profitability, but no corresponding position was established for the U.S. district and circuit courts. Second, while most states adopted requirements that their judges issue written opinions, Congress imposed no such mandate on federal judges. Reporters of federal decisions frequently had to construct written summaries from scratch, sitting in court to take notes on the arguments of counsel and the rulings of the court. Even when judicial opinions were written, they often contained only the judge’s reasoning, leaving the reporter to supply the facts of the case and the lawyers’ arguments for context.

Without any official credentials or a legal mandate to report federal cases, early practitioners of the craft depended on the voluntary cooperation and assistance of federal judges to obtain the resources they needed. Alexander Dallas’s first volume of reports, published in 1790, was among the very first case reporters ever published in the United States. Although it contained only cases decided in Pennsylvania courts before and after the Revolution, it was designated as the first volume of the United States Reports when that series, the Supreme Court’s official case reporter, began publication in 1876. His preface to the volume illustrated the degree to which he relied on assistance from others. Dallas expressed gratitude for the “liberal assistance of the Bench and Bar,” without which he could not have accomplished his task. Because judges were not yet in the habit of producing written opinions for publication, Dallas was permitted to transcribe judges’ notes, received decisions prior to 1787 from Philadelphia attorney William Rawle (who was also Pennsylvania’s first U.S. attorney), and was given briefs by counsel who argued the cases reported. The judges assisted Dallas further by reviewing the opinions prior to publication.

Some case reporters acted at the behest of the judges. In the First Circuit, for example, Justice Joseph Story, Judge John Davis of the U.S. District Court for the District of Massachusetts, and Davis’s clerk of court William Shaw recruited attorney John Gallison to serve as reporter of decisions for the circuit, promising him an equal share of profits and ownership of the copyright for any volumes published. Story and his compatriots had to subsidize the first volume of Gallison’s reports because they initially could not find a publisher. In 1815, Story wrote to a friend, “Unless the first volume succeeds, they cannot be published; and as no bookseller has any interest in the work, I have had my fears that the circulation would be so narrow as to forbid the risk of another.” Boston publishers Wells and Lilly ultimately published two volumes of Gallison’s work covering circuit court cases in the Districts of Massachusetts, New Hampshire, and Rhode Island decided between 1812 and 1815. The task of reporting cases was then taken over by attorney William P. Mason. Altogether, a dozen unofficial reporters compiled thirty volumes of First Circuit decisions between 1812 and 1881.

Even opinions of the Supreme Court of the United States did not always find a ready publisher. At the same time as he feared for the fate of Gallison’s reports, Story was attempting without success to find a home for Cranch’s compilation of 1812 Supreme Court opinions. Cranch’s seventh volume of reports (later designated as the eleventh volume of the U.S. Reports), covering the Court’s 1812 and 1813 terms, was published in 1816. Even when a willing publisher could be found, making a profit from selling case reports became more difficult after the Supreme Court decided in Wheaton v. Peters (1834) that a case reporter could not claim copyright infringement should someone else publish a new edition of the same cases.

Case reporters were often individuals well known to the court, and that familiarity could get them access to judges’ notes on the decisions they rendered. Some were relatives of the judges whose opinions they reported; Justice Story’s son William reported cases in the First Circuit between 1839 and 1845. In the Ninth Circuit, cases between 1870 and 1891 were reported by L.S.B. Sawyer, the nephew of U.S. Circuit Judge Lorenzo Sawyer. Other volumes of reports were compiled by judges themselves. Cranch, in addition to publishing his well-known Supreme Court reports, also compiled cases in the Circuit Court of the District of Columbia, on which he sat for forty-four years. Six volumes of his circuit court reports covering 1801 to 1840 were published in 1852. Samuel Blatchford began reporting Second Circuit cases while an attorney in private practice and continued to do so throughout his tenure as U.S. district judge, U.S. circuit judge, and justice of the Supreme Court. Twenty-four volumes spanning 1845–1887 were published under Blatchford’s name. As Justice Samuel Nelson had written the opinions “without any view to their publication,” Blatchford remarked in the preface to his first volume, “the entire manuscript has had the benefit of [his] revision and approbation.”

As the nineteenth century progressed, federal judges increasingly committed their opinions to writing, and more opinions were reported as a result. When U.S. Circuit Judge William Burnham Woods (later a justice of the Supreme Court) published his first volume of case reports for the Fifth Circuit in 1875, every judicial circuit had at least one such volume, and most had several. Published reports also existed for the U.S. district courts in a handful of states, while a few others covered district courts by geographic region. Some volumes reported federal cases by subject, such as admiralty, bankruptcy, and patent. Federal court reports continued to be scattered and highly selective, however. An 1882 piece in the American Law Review, remarking on the proliferation of published law reports in the United States, estimated roughly ten state and territorial case volumes in existence for each one covering the federal courts (2,678 to 266). 

The standardization of American case law reporters originated in 1876 when the West Publishing Company—which John West had just founded in Minnesota—began publication of the Syllabi. Although the publication initially contained decisions of only the Minnesota state courts, it soon evolved to cover surrounding states as well and was renamed the Northwestern Reporter. The Northwestern Reporter is recognized as the first element of what became West’s National Reporter System. As part of that system, the Federal Reporter published all available cases from the U.S. circuit and district courts beginning in 1880. It was fitting that the first comprehensive national case reporter emerged as the country was in the early stages of developing its modern national economy.

The National Reporter system also contained the Supreme Court Reporter and expanded over the years to incorporate other series, including additional regional reporters for state court cases. In 1932, West began publication of the Federal Supplement, reporting cases from the U.S. district courts (leaving cases from the U.S. courts of appeals, the Court of Claims, and the U.S. Court of Customs and Patent Appeals in the Federal Reporter, then in its second series). West published every case it could obtain from the clerks of the federal courts, its editors preparing summaries and headnotes to accompany each opinion.

In 1897, West began publishing digests, which collected cases by topics organized alphabetically, to assist practitioners in finding multiple cases, across all jurisdictions, on a particular point of law. Although in 1899 John West sold his interest in the company he founded and soon began a competing publishing house, the West Company’s innovation continued. Its “Key-Number System” debuted in 1907, assigning numbers to legal topics and subtopics to help lawyers make sense of the exponentially growing sea of published case law. John West’s goal of comprehensiveness in the publication of court opinions, initially disfavored by some, made the West Company the dominant legal publisher in the United States. Its reporting method became an almost universally accepted paradigm as its case reporters, though unofficial, were cited consistently by attorneys and judges.

The Federal Reporter, while revolutionizing the reporting of federal judicial opinions, still left pre-1880 federal cases in a scattered, disorganized, and incomplete state. Judges and practitioners petitioned the West Company to remedy the situation and make the record of federal cases “exhaustive.” The result, after several years of work, was the reporter commonly known as Federal Cases (with the full title Federal Cases Comprising Cases Argued and Determined in the Circuit and District Courts of the United States from the Earliest Times to the Beginning of the Federal Reporter, Arranged Alphabetically by the Titles of the Cases, and Numbered Consecutively). The series consisted of thirty volumes published between 1894 and 1897. In a preface to the first volume, the company explained the labor involved:

It is the purpose of Federal Cases to cover, with the Federal Reporter and the United States Supreme Court Reports, the whole body of the law as it has been administered by the Federal courts. The successful accomplishment of this end requires not only the republication, entire, of all of the old Circuit and District Court Reports, but also all Federal cases which can be brought to light by an exhaustive examination of the United States Supreme Court Reports, the law periodicals, state reports, text books, and other works likely to contain such cases, and an unremitting search for all accessible decisions whether to be found in pamphlets, in any of the great libraries, in the hands of individuals, or in the records of the courts. In this way several thousand decisions have been discovered which are not to be found in what is generally regarded as a complete Federal library. . . .

[I]nquiry of the clerks of all of the Federal courts for unreported decisions has produced a large number of important opinions, as has also an exhaustive search of the files of the newspapers published during and prior to the late war, such, for instance, as the New York Daily Times and Niles’ Weekly Register. It has been the constant aim to preserve everything of importance, and no effort has been spared to make the reports of these cases full and complete in every respect.

The West Company remained the dominant legal publisher well into the twentieth century, continuing its practices of reporting federal cases as comprehensively as possible, publishing digests organized by subject, and using its Key-Number organizational system. Falling outside the scope of this spotlight are the changes to federal case reporting that began in the last quarter of the twentieth century: the advent of computerized databases, the emergence of online legal research services, and the federal courts’ increasing practice of withholding certain decisions from publication. These changes have continued the evolution of case reporting that has helped to shape federal court practice since 1789.

Jake Kobrick, Associate Historian
For more information, contact history@fjc.gov

Related FJC Resources:
Read about the Reporter of Decisions for the Supreme Court of the United States.

Peruse our exhibit, The Justices’ Circuit Court Opinions, most of which were drawn from Federal Cases.

Further Reading:
Berring, Robert C. “Legal Information and the Search for Cognitive Authority.” California Law Review 88, no. 6 (December 2000): 1673–1708.

______________. “Legal Research and Legal Concepts: Where Form Molds Substance.” California Law Review 15, no. 1 (January 1987): 15–28.

Duffey, Dennis P., Jr. “Genre and Authority: The Rise of Case Reporting in the Early United States.” Chicago-Kent Law Review 74, no. 1 (1998): 263–276.

High, J. L. “What Shall be Done with the Reports?” American Law Review 16, no. 6 (June 1882): 429–445.

Jarvis, Robert M. “John B. West: Founder of the West Publishing Company.” American Journal of Legal History 50, no. 1 (January 2008–2010): 1–22.

Mills, William R. “The Decline and Fall of the Dominant Paradigm: Trustworthiness of Case Reports in the Digital Age.” New York Law School Law Review 53, no. 4 (2008–2009): 917–938.

Surrency, Erwin C. “Law Reports in the United States.” American Journal of Legal History 25, no. 1 (January 1981): 48–66.

Young, Thomas J., Jr. “A Look at American Law Reporting in the 19th Century.” Law Library Journal 68, no. 3 (August 1975): 294–306.

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.