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Thursday, July 31, 2008

Thursday Morning Randomness: On the Naming of Supreme Court Cases

I once heard a story, although I forget from whom, about why Bush v. Gore is captioned "Bush v. Gore." After all, the particular lawsuit that ended up in the Supreme Court was captioned "Gore v. Harris" in the Florida state courts, since it was an attempt to contest Katherine Harris's certification of the election... according to the story, the Supreme Court's reporter of decisions -- Frank Wagner -- decided that the case "had" to be called Bush v. Gore, because that's really what it was. (In contrast, the Supreme Court's earlier per curiam decision sending the case back to the Florida courts was captioned "Bush v. Palm Beach County Canvassing Board.")

Anyway, this got me thinking about why we don't choose "appropriate" or "more accessible" case names for more major Supreme Court cases. After all, in the "old" days, it was common to do so -- just consider the Legal Tender Cases, the Slaughterhouse Cases, the Civil Rights Cases, the Chinese Exclusion Case, the Japanese Immigrant Case, the Selective Draft Law Cases, and the Gold Clause Cases, just to name a few, none of which are remembered by the names of the actual litigants, even where that's how they're memorialized in the U.S. Reports... (curiously, the Slaughterhouse and Civil Rights Cases are actually so captioned).

Why, except for Bush v. Gore, don't we do that anymore? Is Frank Wagner right (if the story is true) that cases should be captioned in a manner that makes them more publicly accessible whether or not it's a technically correct statement of the parties? If so, any suggestions for recent decisions of note?

Posted by Steve Vladeck on July 31, 2008 at 10:01 AM in Constitutional thoughts, Steve Vladeck | Permalink


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Following up on Simon Dodd's point, it seems unlikely that there's much of a Green Bag article in how the caption "Bush v. Gore" came to be.

In the Florida Supreme Court, the caption of the case was "Albert Gore, Jr., and Joseph I. Lieberman, Appellants, v. Katherine Harris, as Secretary, etc., et al., Appellees." See 772 So.2d 1243. George W. Bush and Richard Cheney were among the other appellees. The case went to the U.S. Supreme Court on their application for a stay of enforcement of the Florida Supreme Court's decision, not on a filing by Katherine Harris. The Court treated the Bush/Cheney stay application as a petition for certiorari. See 531 U.S. 1046. After cert was granted, Harris was among a group of respondents who filed a brief in support of the petitioners, and her counsel of record, Joseph Klock, got 10 minutes of oral argument. But neither the U.S. Supreme Court nor Ted Olson had to do anything unusual to keep the lead petitioner's name in the caption.

Posted by: C. Gannon | Jul 31, 2008 10:18:23 PM

Here's a footnote from my in-progress article "In Search of the Trade-Mark Cases" that might be of interest:

The short, practical name “Trade-Mark Cases” was part of the trend towards shorter and more useful case names begun during John William Wallace’s tenure as Reporter of Decisions, stemming from his desire to prevent case names from becoming unwieldy since the case name “is only designed for facility of reference.” Preface, 68 U.S. (1 Wall.) xiii-xiv (1863). Wallace’s practice in this area stood in stark contrast to the reporters who had preceded him, and was followed by his successor William Tod Otto, who served as reporter for this case.

The Trade-Mark Cases were in 1879. I don't go into it in the footnote (maybe I should), but the custom seems to have died out by 1900.

Posted by: Zvi S. Rosen | Jul 31, 2008 2:46:50 PM

Steve, I think this is an urban legend - the petition for stay that followed the Florida court's Gore v. Harris ruling was captioned "Bush v. Gore," and presumably the subsequent litigation followed from that. So I guess it's all Ted Olson's fault!

Posted by: Simon Dodd | Jul 31, 2008 2:45:56 PM

There are still cases that have widespread nicknames -- e.g. the Betamax case for copyright lawyers -- but they no longer get those nicknames in place of the party names in a full cite. Formalization of citation practices is probably to blame. I.e., it's the Bluebook's fault.

Posted by: Bruce Boyden | Jul 31, 2008 1:55:39 PM

Clinton v. City of New York is pretty regularly called "the Line Item Veto Case," and I think there were some references within the Court to Roe v. Wade and Doe v. Bolton, when they were pending, as "the Abortion Cases"; likewise with Brown et al. as "the Segregation Cases." Bringing back the descriptive and memorable styles is an interesting idea, but there's always the potential problem of picking a name with a political slant. (For example, what name would one give to Lawrence v. Texas?) Much less risky, I would think, just to pick the name of a party.

Posted by: Mike Dimino | Jul 31, 2008 1:29:59 PM

"The Head Money Cases" is a pretty sweet name.

This bit about Frank Wagner might be a good idea if the names are assigned early in the process. I have a few ideas for what the public should call Kennedy v. Louisiana...

Posted by: | Jul 31, 2008 1:16:30 PM

I always liked the old-timey English construction of "So and So's Case"

Posted by: keith | Jul 31, 2008 11:37:09 AM

Naming cases in accordance with their actual subject is an interesting concept, but I think there is more to the idea of "publicly accessible" than case names. Supreme Court opinions, whether out of necessity or custom, are not written to be accessible by the general public. They are written for lawyers and for other judges. Perhaps this is a shortcoming, if so, a lot more has to be done in addition to changing the naming methodology.

Besides, some cases are publicly accessible despite their names and technical content in that they have become a shorthand for shared beliefs about the fundamental nature of our country. See, e.g., Brown v. Board of Education.

Posted by: C. Lopez | Jul 31, 2008 11:07:34 AM

Is that story true? I smell a Green Bag article in the making.

FWIW, I think that the most recent example of a case being referred to with a name other than its official title (at least that I run into in my world) is the Keith case -- named after the judge, because the mandamus procedure made the usual casename so odd.

Posted by: Orin Kerr | Jul 31, 2008 10:42:05 AM

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