Things you can't believe on Westlaw

[Douglas Laycock]

Not surprisingly, Fred was right.  Maybe more right than he knew.  

I don't know when the phrase "substantive due process" first appeared in the
text of a headnote, tracking the language of the court's opinion. But
"substantive due process" as the heading for a keynote number does not
appear until a massive reorganization of the Constitutional Law topics in
the Eleventh Decennial Digest part 3 -- in 2007!  And so of course the
phrase does NOT appear in the headnotes to that 1938 Wyoming opinion, or in
many of the other cases that that pop up if you search for "substantive due
process" in Westlaw. It appears on line, but it does not appear in the
original reporters.

Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546

-----Original Message-----
From: Shapiro, Fred [mailto:fred.shapiro at yale.edu] 
Sent: Sunday, October 10, 2010 10:12 PM
To: Douglas Laycock
Cc: conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?


Now that I think more about it, you might actually need to find a library
that kept all of the annual pocket parts to the relevant digests.  There may
be no such library; West may not even have kept them.

Fred Shapiro



________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
On Behalf Of Shapiro, Fred [fred.shapiro at yale.edu]
Sent: Sunday, October 10, 2010 10:01 PM
To: Douglas Laycock
Cc: conlawprof at lists.ucla.edu
Subject: RE: who coined "substantive due process"?

You need to find a library that kept all the West digest volumes when they
were recompiled; many libraries would not have done that.

But you are right about the need to check the books for this kind of
research.  My wife is the New Haven researcher for the Oxford English
Dictionary.  The reason that the OED employs library researchers in the
major library centers of the English-speaking world (Oxford and London and
Washington and New York and Cambridge, Mass. and New Haven) is that they
believe that the online representations of old books and newspapers are
often not reliable.  In the future people will regularly check Google Books
and be satisfied with what they find, without realizing that GB often
misdates books, confuses editions, or links up books and metadata entirely
erroneously.  Lexis and Westlaw are often unreliable representations of the
original documents.

Fred Shapiro



________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
On Behalf Of Douglas Laycock [dlaycock at virginia.edu]
Sent: Sunday, October 10, 2010 9:43 PM
To: conlawprof at lists.ucla.edu
Subject: Re: who coined "substantive due process"?

This is one more reason why we need to keep the books on the shelf.
Tomorrow, with hard copy, we can find out what West called it in 1904. Or
1920, or any other year we have a citation to. The electronic version is
endlessly amendable; the hard copy stays put.

On Sun, 10 Oct 2010 21:27:09 -0400
 "Shapiro, Fred" <fred.shapiro at yale.edu> wrote:
>
>If only Fred Shapiro were on this list...
>
>The earliest I find for the phrase "substantive due process" in a few
minutes of searching is in the Columbia Law Review, May 1928.  I believe
Doug Laycock's assertion that West used the phrase in headnotes back to 1904
is erroneous; if Westlaw seems to indicate that now, that probably only
means that West created or renamed that headnote many decades afterwards and
retroactively applied it to the cases Doug mentions.  Assertions based on
Google Books hits are probably also erroneous, artifacts of GB's dating
problems, which are a lot worse than "a bit confusing."
>
>Fred Shapiro
>
>
>