The Birth of Law Reports
Published law reports are an essential component of a common-law system. Without knowing what a prior case held or said, how can anyone follow precedent? But the system of law reports that we have evolved in a haphazard manner. Until well into the nineteenth century, reports were put together by private individuals (sometimes on their own and sometimes hired by a court) or by the judge. As a result, many of the law reports that we have from early American cases are incomplete or missing.
One of Bushrod Washington’s many contributions was in getting more reports done. As a private practitioner, he published volumes on the opinions of the Virginia Supreme Court based on his notes. As a Supreme Court Justice, he worked to get reports of his circuit cases published in a more diligent manner than many of his colleagues.
Of course, there was a selfish aspect to this. Disseminating his own opinions increased Justice Washington’s influence. There was also selective bias at work. In my research, I have found some notes that Washington made for the preparation of circuit reports, where he explains how his oral statement about the case should be modified prior to publication. Sometimes he suggested revisions to clarify what was said, but sometimes he did so to correct an error he felt he had made.
There are also one set of cases that Washington never reported–his trials involving the Alien and Sedition Acts. This omission is probably not an accident, given how controversial those cases were. This is on reason why taking control of the reports away from the courts was a sound change.