February 15, 2012
In a few weeks it will be spring, and we’ll have a rush of Supreme Court opinions to look forward to. The court will marshal a good two centuries of precedent in reaching its decisions, and I’m sure we’ll see references to Marbury and to Erie, from Celotex to Twombly. But we’ll also see a few references to a more obscure case.
U.S. v. Detroit Timber and Lumber Company, 200 U.S. 321, was decided 106 years ago this coming weekend. Writing for a majority, Justice Brewer addressed some obscure points of law regarding the right to cut timber on public lands. However, in rejecting a precedent proffered by one of the parties, he made the statement that would earn Detroit Timber its place in the history books: “[T]he headnote is not the work of the court…It is simply the work of the reporter…and is prepared for the convenience of the profession.” It is for this proposition that Detroit Timber is cited in almost every decision released by the Supreme Court today:
Outside the court’s standard footnote, headnotes and case syllabi have been mentioned by the court a few other times.
Result: 57 Documents
Search: op(syllabus /s case court)
Result: 86 Documents (the extra search language is necessary to weed out unrelated education cases)
Most of these cases refer to annotations of State Supreme Courts, which, in some States, actually is “the work of the Court,” and does “state its decision.” This rule in the States is probably what led Solicitor General Hoyt to make his failed argument from the annotations in Detroit Timber (Justice Brewer even recognizes that some States have a different rule). He probably wasn’t the first to make this mistake, and he almost certainly won’t be the last.
Manifesting Corporate Personhood
Distinguishing the Court’s legal opinion from research tools can be extremely important. Background on a particularly infamous invocation of the annotations can be found by running the following search in JLR: corporate /3 personhood /p head-note syllab!. I saw 5 results, each of which gives a decent introduction to the history of this particular legal concept.
The court reporter who wrote the headnote into the official record of the Santa Clara decision was an adept lawyer who had ties to the railroad industry…Since only the text of judicial opinions is binding precedent, this case should not have been cited since then as the bedrock case supporting corporate personhood.
24 JENVLL 75, fn 122
Additional Research References
Our attorney editors may be adept but they don’t have ties to the railroad industry. This 2008 video does a good job outlining how Westlaw adds headnotes. Watch our editors add headnotes at 2:58.
See Mr. Gil Grantmore’s brief history of U.S. v. Detroit Timber and Lumber Company at 5 Greenbag 157.
Detroit Timber clearly does not stand for the proposition that the headnote is irrelevant or inappropriate for citation. On the contrary, after explaining the genesis of the headnote, the Court goes on very carefully to consider its substance. True, the headnote did not carry the imprimatur of the Court. But it nevertheless seems to have been considered at least respectable persuasive authority. The common view today that the syllabus is valueless cannot be supported by Detroit Timber.