Passim is now passe (Should the Table of Authorities in general fall with it?)

I apologize for being an errant blogger. Between grading appellate briefs, our intramural moot court competition, a raging sinus infection, and a certain junior associate's fourth birthday, it has been a busy month. It has also been a busy month in the world of appellate advocacy, with a new Justice being confirmed. Congratulations to Justice Ketanji Brown Jackson!

Since most of the SCOTUS watchers were consumed with the confirmation hearings this past month, you might have missed this small, but important piece of news: The Supreme Court is doing away with passim. In a set of proposed rule changes released on March 30, the Court directed that "passim" no longer be used in the Table of Authorities. The National Law Journal's coverage of news is excellent, with some humorous quotes from veteran practitioners.

I was a bit surprised by the news, but only because I thought that the rules already prohibited the use of passim. But, I was wrong.  Some circuits, like the D.C. Circuit, do restrict or discourage the use of passim in their circuit rules or sample briefs. Such rules make sense, since passim really doesn't help the reader find the brief-writer's discussion of a particular case.

But, some attorneys are arguing that in the age of electronic briefs the Table of Authorities itself should be passe.  In the April Issue of the Arizona Attorney magazine, attorneys Casey Ball and Kelley Jancaitis present an argument for doing away with the TOA, while attorney Geoffrey Butzine argues for retaining it. Ball and Jancaitis base their argument both on the cost of compiling a TOA, especially for attorneys who don't have access to good software, and the fact that "electronic briefs replace the TOA's primary purpose"--which they identify as "to help courts identify and locate the authorities cited in a brief." 

While I agree that searchable electronic briefs are a game-changer when it comes to finding something in a brief, I agree with Butzine that  judges use TOAs in many ways. For example, when I look at a TOA, I have a better understanding of the overall approach that the argument section will take. While Ball and Jancaitis argue that judges can use the TOC for this orientation, the TOA with its detailed list of cases is much more detailed. It tells me, for example, if the appellate really addressed the seemingly devastating case that the lower court relied upon. 

I see this argument over the TOA a bit like the argument over footnoted citation.  Whenever I lecture on this topic, I always point to a blog post by Eugene Volokh, where he discussed footnoted citations with an appellate judge. The judge told him  "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Given the importance of citations and authorities, I think that TOAs are here to stay, at least for another few decades.