There will surely be rafts of analysis and discussion in the
days, weeks, and months to come concerning today’s U.S. Supreme Court decision
v. Public.Resource.Org. And while interesting issues abound, what this law
librarian found most striking at first glance were the pronouncements by the Justices
about the importance of annotated codes. Indeed, it is quite rare that courts,
let alone the Supreme Court, tell us what they think about legal research
products. So, here we will eschew opining on the merits of the decision or its
significance, but will focus instead on the veritable feast of what the high
court has to say about annotated codes, “the most useful resources in most
statutory research,” as well as other advice offered about conducting legal research.
The question in this case was whether annotations to Georgia’s
official statutory code were copyrightable under the venerable “government edicts
doctrine,” last considered by the Court in 1888. Georgia argued that they were,
and a nonprofit activist organization, Public.Resource.Org, argued they weren’t.
The Court, in a 5-4 split, agreed with the latter. Chief Justice John Roberts
wrote for the majority, and both Justices Thomas and Ginsburg wrote dissenting
opinions. Despite their differences, all three justices offer insightful—if motivated—instruction
on the publication and use of legal resources. We can combine these insights
into a clear enough lesson on conducting legal research prepared by those most
supremely qualified to teach it.
Annotated codes are “a valuable research tool.” This is because “annotations provide commentary and resources that the
legislature has deemed relevant to understanding its laws.” “The annotations generally include summaries of judicial decisions applying a
given provision, summaries of any pertinent opinions of the . . . attorney
general, and a list of related law review articles and similar reference
materials. In addition, the annotations often include editor’s notes that
provide information about the origins of the statutory text, such as whether it
derives from a particular judicial decision or resembles an older provision
that has been construed by . . . courts.” “Annotations aid the legal researcher, and that aid is enhanced when
annotations are printed beneath or alongside the relevant statutory text.” In Georgia and in every jurisdiction, a private company “and its army of
researchers perform the lion’s share of the work in drafting the annotations.”
The annotations about cases “should ‘accurately reflect the facts,
holding, and statutory construction’ adopted by the court.” But “the annotations do not carry the binding force of law. They simply
summarize independent sources of legal information and consolidate them in one
place. Thus, . . . annotations serve a similar function to other copyrighted
research tools provided by private parties such as the American Law Reports and
Westlaw, which also contain information of great ‘practical significance.’ ”
“[A]nnotations comment on statutes already enacted.” Case notes in annotated codes can be particularly valuable because they “summarize
judicial decisions construing the statute years later.” “The annotations are neutrally cast; they do not opine on whether the
summarized case was correctly decided.”
But “concurrences and dissents . . . carry no legal force.” “At an
elementary level, it is true that the judgment is the only part of a judicial
decision that has legal effect. But it blinks reality to ignore that every word
of a judicial opinion—whether it is a majority, a concurrence, or a
dissent—expounds upon the law in ways that do not map neatly on to the legislative
function. Setting aside summary decisions, the reader of a judicial opinion
will always gain critical insight into the reasoning underlying a judicial holding
by reading all opinions in their entirety.” We encourage you to do so, especially for this case, lest you miss other
important information about using annotated codes or reading judicial opinions.
There are several other fascinating tidbits about legal
information products, as both Chief Justice Roberts and Justice Thomas discuss
the costs of legal resources and the incentives for creating them. Justice Thomas wonders aloud about the 19th century meanings of the terms “headnote”
and “syllabus.” And finally, we learn the
unsurprising fact that the Court “is privileged to have access to numerous
Indeed, on this last point, we can all recognize how special it is
to share such a privilege – and to make sure you’re getting the most out of
those available from our library, consult our research guides or contact a reference librarian.
While we’re not Supreme Court justices, we may have some additional wisdom to
share about legal research.
Kent C. Olson, Principles of Legal Research 54 (2nd ed. 2015).
v. Public.Resource.Org, No. 18-1150, dissenting op. at 17 (U.S. Apr. 27, 2020)
slip op. at 11 (Roberts, C.J.).
dissenting op. at 4 (Ginsburg, J.).
slip op. at 3 (Roberts, C.J.) (citation omitted). But Georgia presents “an
unusual case because most official codes are not annotated and most annotated
codes are not official. Id., at 4. Even still, “25 other
jurisdictions—22 States, 2 Territories, and the District of Columbia— . . .
rely on arrangements similar to Georgia’s to produce annotated codes.” Id.,
dissenting op. at 1 (Thomas, J.).
dissenting op. at 3 (Ginsburg, J.).
dissenting op. at 8 (Thomas, J.).
dissenting op. at 2 (Ginsburg, J.).
slip op. at 15 (Roberts, C.J.).
dissenting op. at 13 (Thomas, J.).
slip op. at 16-17 (Roberts C.J.); dissenting op. at 17 (Thomas, J.)
Posted by Aaron S. Kirschenfeld on Mon. April 27, 2020 5:00 PM