Sunday, November 2, 2008

Judicial Spelling Error, Multiple Mitchies/Miches on Banks and Banking, and the Legacy of Legal Treatise Authorship

A patron showed me this reference in a 1998 Louisiana Supreme Court case:
The initial deposit of funds gives rise to the contract between bank and depositor; the subsequent creation of rights of others to an interest in an account involves an amendment of the original contract. 5A Mitchie on Banks and Banking 18 (M.J. Divine & G.E. Legner eds., Rev. ed.1994).

Marx v. Whitney Nat. Bank, 713 So.2d 1142, 1145 (La. 1998)
And asked me if we have “Mitchie on Banks and Banking”. He had the report volume and showed me the reference in the case and I look it up but, no, we don’t have “Mitchie on Banks and Banking” and as I offer to see if any other law library in town has it, he says, no, its not that important, and walks away.

But then I think, well, I’ve never heard of "Mitchie on Banks and Banking" and I check anyway to see who has it and there is NOTHING listed in OCLC for this because, of course, the actual title is “Michie on Banks and Banking”. We do have this set and so I grabbed the first volume and found the patron and said, yes, we have it and I confirm that the case he showed me did indeed mis-spell the name of this set.

In fact, thirty-two cases have mis-spelled “Michie on Banks and Banking” over the years. That includes several cases back in the 19-teens which at first led me to think that maybe at one time there was ANOTHER multi-volume banking treatise called “Mitchie on Banks and Banking” that has since been confused with “Michie on Banks and Banking” (maybe each written by rival attorney brothers who altered the spelling of their last name to spite their arrogant, over-bearing Germanic banking-lawyer father whose original name was something like “Meitchei”). But, no, there are over 700 citations to “Michie on Banks and Banking”, some of which also date back to the second decade of the twentieth century, so I guess judges and their clerks have been mis-spelling “Michie” as “Mitchie” for almost a century.

Funny thing is! When I didn’t find a title phrase “Mitchie on Banks and Banking” and did a title keyword search on OCLC for “mitchie” and “banks” I found that one library actually has a record for “Mitchie in Banks and Banking”:

Mitchie in Banks and Banking, By the Editorial Staff of the Publishers. Under the supervision of A.D. Kowalsty, R.W. Walter and M.J. Divine.
Charlotte, Va : The Mitchie Company Law Publishers, 1993-
Description: v.
So, New Hampshire Law Libray, vanquish your erroneous cataloging record! Correct the spelling of “Michie” and change the mistaken preposition! Its “Michie on Banks and Banking”! Published by the lovely folks at Lexis-Nexis,
Michie on Banks and Banking is an encyclopedic treatise based on exhaustive and continuous study of the case law involving the organization, functions, rights, powers, duties, and liabilities of banks and other financial institutions. With more than 100 subject matter titles, Michie on Banks and Banking addresses virtually any question attendant to banking law and practice.
(“Any question attendant to banking law and practice” sounds like the same ad copy that might have accompanied this work when it was originally published way back in 1913 or whenever.)

Two questions come to mind: is “Michie” of this “On Banks and Banking” title the actual Michie for whom the publishing company, now owned by Lexis-Nexis, is named? And, just how long does somebody have to be dead before a legal treatise they wrote and which has been revised several times since their death no longer warrants the use of their name in the title? John Henry Wigmore died in 1943 but Wigmore on Evidence is still a leading treatise on that subject; which, I had heard, is undergoing a revision at the hands of a professor I once worked with, Craig Callen. What it will be called after this revision remains to be seen.

The other recent example is one I happened to actually use this past week. The standard treatise on statutory interpretation is still referred to as “Sutherland on Statutory Construction”, though the actual title had always been “Statutes and Statutory Construction” by J.G. Sutherland. Since I was a wee young law student at the University of Alabama, I’ve known that one of my favorite professors there, Norman Singer, has been the editor of that set for a good while, but he and Mr. Sutherland were still both listed as authors, though Sutherland died in 1902. Only this past week when I again had cause to use this set did I learn that the recent revisions have dropped Sutherland entirely from the credits, which is probably entirely appropriate since his last contributions would have occurred, at the latest, during the administration of Teddy Roosevelt.

So who was Michie and when did he - the actual person, and not the company - die? And when will his legacy fade away as subsequent authors feel their contributions mandate the erasure of a credit acknowledging the original scholar’s initial efforts?

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