SCOTUS Cites F.4th!

I had missed the first citation in Doe v. Mills.

At some point in mid-2021, WestLaw introduced F.4th--the fourth series of the Federal Reporter. And now, F.4th made it into the Supreme Court's cases.

In Doe v. Mills, Justice Gorsuch's dissent cited the First Circuit's decision:

Maine's regulation sought to "protec[t]the health and safety of all Mainers, patients, andhealthcare workers alike." Does 1–6 v. Mills, ___ F. 4th ___, ___, 2021 WL 4860328, *6 (CA1, Oct. 19, 2021).

And in NFIB v. OSHA, the Court repeatedly cited Judge Sutton's dissental in In re MCP, as well as the Fifth Circuit's opinion in BST Holdings v. OSHA. Both opinions are reported in F.4th.

Welcome to the U.S. Reports, F.4th.

For those curious, F.3d was published between 1993 and 2021. It had a long run--longer than most current law students have been alive. Then again, F.2d stretched from 1924 till 1993.

Comments

[Dan Schiavetta]

They probably ended F.3d with volume 999, to avoid a fourth digit which would make formatting more difficult in lists. IIRC that’s how they ended F.2d.

[John F. Carr]

I remember pulling high numbered F.2d volumes off the library shelf in college, before our school got or before I discovered a Lexis service. I wonder where those volumes are now. Are they in long term off site storage? Pulped?

[David Bremer]

It’s collecting dust in your school’s library, existing only to keep a high ranking in US News and World Report, which, last I saw, still considers number of volumes in the library. Like judging a military’s strength by the number of Calvary horses or cannonballs.

[No One Of Consequence]

I remember citing F.3d in a brief or a memo or something when I was just starting out, and the partner I wrote it for sent ib back with the "F.3d" circled and "what's that?" in the margin.

[John F. Carr]

Criteo elected to show me an ad for women's underwear in the middle of the above post. What does that say about me or Josh Blackman's writing?

[WPHDM]

Who needs volume?

RE: --- F.4th --- and such. This is inane, if not insane. No one is pulling hard-copy volumes off the shelves any more ... well hardly anyone. So what use is a volume number? Ditto for page number donkey ears. Not to mention that the hard copies aren't promptly available even if you have access to a traditional law library in times of COVID closures and protocols.

A better system

We have an exemplary appellate electronic docket management system in Texas that incidentially could also outdo ___ S.W.3d ___, WL, and LEXIS for citation purposes. All 14 COAs are uniform in the case number designation system and format (wasn't always so), which would obviate the need to specify the appeals court city in the Bluebook/Greenbook long cite, not to mention the distinction between [1st Dist.] and [14th Dist.], both of which sit in Houston.

For an example, appellate case number 04-22-00026-CV all by itself tells you that this is an appellate case in the Fourth COA in San Antonio (04); the 22 tells you it was filed this year; 00026 is the sequentially assigned number (so even later in the year you will know this was one of the first filed in January), and CV denotes the appeal as a civil case. Criminal ones get a CR suffix.

Full cite, with no need for WL or LEXIS identifiers: In re Robert Tejeda, No. 04-22-00026-CV (Tex.App.-San Antonio, Jan. 14, 2022).
https://search.txcourts.gov/Case.aspx?cn=04-22-00026-CV&coa=coa04
Part of that string - Tex.App. and city name is actually redundant. In combination with the date of decision (order or opinion), you can even guess how long the case has been pending on appeal.

In short, the official docket number itself contains meaningul meta data. The reporter volume and page numbers not so much. And WL and LEXIS identifiers are random numbers, by contrast, that convey nothing about the case, and they uniquely identify opinions and orders, rather than cases (in which multiple orders and opinions my issue from inception to final disposition and e-archiving).

Most importantly, the official appellate case number allows for convenient look-up of the on-line docket on the Texas Judiciary Website (with links to opinion, briefs, and other documents, all in PDF; convenient pull-up on the Texas eFiling system to file into a case, as well as on the associated reSearchTX facility for general research or tracking of cases of interest. It also works for quickly locating orders and opinions in Google Scholar. And unlike WL and LEXIS (not to mention __ S.W.3d __ cites, the case number is available as soon as the appeal is docketed and stays the same throughout.

The Texas Supreme Court case numbering convention is convient also: 2 digits for year - dash - sequence number in four digits incl. zeros preceding low numbers (analogous to 5 digits for COA sequence numbers). So that makes them shorter than the COA numbers and distinct in format from SCOTUS as well as 5th Cir appellate case numbers. Example: Angel v. Tauch, No. 19-0793 (Tex. Jan. 14, 2021).

All you need to find the opinion on the SCOTX website is either the case number (for the case lookup portal) or the date (to use the order release page). The Southwestern Reporter or Westlaw cite, by contrast, is useless for finding the docket. If you only have the Bluebook cite, you will have to search by party name, and there are often many duplicates. Like: "In re State" recently.

For more on the topic, see "Bluebook Fail" https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3514995

[WPHDM]

Here is another one:

Whole Woman’s Health v. Jackson, 13 F.4th 434, 438–41 (5th Cir. 2021).

Cited thusly by again-dissenting Circuit Judge Stephen A. Higginson on occasion of the latest installment in the multi-level and now cross-federal-state WWH saga, certifying weighty query to the Texas Supreme Court as to whether "exclusive" in SB8 does indeed mean "exclusive" as to private enforcement. (Gist version). Irony here: a motions panel of the 5th had already answered that question prior to the detour to Washington DC.

See the more elaborate charge to the Texas High Court here: https://www.ca5.uscourts.gov/opinions/pub/21/21-50792-CV1.pdf

But no --- F.4th --- treatment for the oral-argument order:

Whole Woman’s Health v. Jackson, No. 21-50792, Order Scheduling Oral
Argument (5th Cir. Dec. 27, 2021) (Higginson, J., dissenting).