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Institute for Scientific Information Inc. v. United States Postal Service

argued: March 29, 1977.



Seitz, Chief Judge, and Aldisert and Hunter, Circuit Judges. Seitz, Chief Judge, dissenting.

Author: Aldisert

ALDISERT, Circuit Judge.

On this appeal from summary judgment in favor of the United States Postal Service, the issue presented is whether issues of "Current Contents", publications by the appellant Institute for Scientific Information [ISI], constitute "periodical publications", and thus qualify for second class mailing privileges, within the meaning of former 39 U.S.C. ยงยง 4351 and 4354.*fn1 After the Postal Service revoked the then-existing second class status of the "Current Contents" publications, ISI appealed to the chief administrative law judge of the Postal Service for reinstatement of the original classification. On May 22, 1975, the ALJ upheld the revocations and denials of second class status. The Postal Service's judicial officer subsequently upheld the revocations and denials, making this the final decision of the Postal Service. The court below upheld the Postal Service's determination on the basis that the ISI publications were not "periodical publications" within the standards enunciated in Houghton v. Payne, 194 U.S. 88, 48 L. Ed. 888, 24 S. Ct. 590 (1904), addressing the requirements necessary for second class mailing status. Because we determine that issues of "Current Contents" demonstrate the essential attributes of a periodical, we reverse.


Issues of "Current Contents" are paper-bound publications published weekly in Philadelphia, Pennsylvania for subscribers. Described by their publisher as "an effective and economic solution of the treble problem of literature scanning, reading selection, and rapid dissemination of information," the publications are designed primarily to alert subscribers to recently published articles in various scientific fields. An editorial board reviews scientific and technical journals within each publication's specific field and lists in the appropriate issue the articles contained in recent journals deemed worthy of inclusion; the "listing" is accomplished by reproducing, with minor variations, the tables of contents of included journals. In addition to the lists of articles from selected journals, each issue of "Current Contents" contains an editorial article, and editorial comments on recent articles appearing in popular journals.

A second class mailing permit for "Current Contents - Life Sciences" was issued on January 19, 1961. Subsequently, four other publications ("Current Contents - Behavioral, Social & Educational Sciences"; "Current Contents - Physical & Chemical Sciences"; "Current Contents - Engineering & Technology"; and "Current Contents - Agriculture, Food & Veterinary Sciences") were issued second class mailing privileges by the Post Office Department. On May 14, 1971, the Post Office Department proposed to revoke the second class status of "Current Contents - Behavioral, Social & Educational Sciences," and on June 17, 1971, the Department proposed revocation for the remaining four publications. Applications for second class permits for two other publications ("Current Contents - Clinical Practice" and "Current Contents - Life Sciences") were denied by the Postal Service on April 12, 1973, and July 6, 1973, respectively.


Throughout the proceedings, both sides have agreed that other than the basic issue of whether "Current Contents" are "periodical publications," each publication meets all other requirements for second class mailing privileges.*fn2 The Postal Service argues, and the district court agreed, that any analysis of whether the publications are "periodical publications" is controlled by a passage from Houghton v. Payne, supra :

A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects.

194 U.S. at 97. This approach to judicial decision-making raises a fundamental inquiry into the anatomy of a precedent.


In ascribing controlling authority to the single Houghton passage, the Postal Service tries its hand at a classic legal reasoning form.*fn3 It begins with a major premise that all periodical publications require "a variety of original articles by different authors"; it supplements this with a minor premise that "Current Contents" have neither original articles nor different authors; and it concludes that "Current Contents" are not periodical publications. But notwithstanding logical form, there can be no truth to a conclusion drawn from an incorrect premise. If the major premise is invalid - if it is not a bona fide rule of law - the syllogistic house collapses. ...

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