Thursday, April 1, 1997© HyperLaw, Inc.®

Citation Reform

Citation Reform

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HyperLaw, Inc.

Citation Reform

Be sure to read ****COMMENTS TO THE JUDICIAL CONFERENCE. This is a very long and comprehensive page that links to several hundred other documents.,

NEW June 12, 1997
The Arizona Bar Association has filed an amended opinion in support of the immediately available uniform citation. This Bar has done an excellent job in analyzing the issues related to citation and publication of opinions by courts. We recommend that their report be studied by anyone interested in this issue. NEW June 12, 1997

An interesting paper On the Net and Information by Professor Amissah pointing out the international implications of restricting access to court opinions.

NEW April 21, 1997
****COMMENTS TO THE JUDICIAL CONFERENCE AND RELATED INFORMATION AND ANALYSIS, new comments filed in March, 1997 and the survey of judges orgainized by circuit. The comments have also been organized by category and include most comments filed, except for short one line comments from the public. Links to a page containing over 400 links to other documents.

NEW April 14, 1997
Time Magazine Article About Vance Opperman, Anti-Trust, and Political Contributions.

NEW April 11, 1997
What Can You Do to Express Your Views Concerning the Adoption of the ABA Citation Proposal by the Federal Judiciary 1.0

NEW April 11, 1997
Transcript -- Hearing, Automation Committee U.S. Judicial Conference re ABA Citation Proposal, April 3, 1997

NEW April 11, 1997
Judge's Response to AO Survey in RTF format.

NEW March 28, 1997, additional information April 1, 1997
HyperLaw Letter to Clerk, Eighth Circuit Re ABA Citation Proposal, March 28, 1997. The HyperLaw letter rebuts the arguments of the Clerk of the United States Court of Appeals for The Eighth Circuit that the ABA Citation Proposal is "a solution in search of a problem", quoting West. See Letter dated March 14, 1997 from Michael E. Gans, Clerk of the Court, United States Court of Appeals, For the Eighth Circuit, Appellate Court Clerk's Advisory Committee.

NEW Thursday, March 27, 1997, additional information April 1, 1997
West schedules for April 3-5, 1997 a Legal Press Retreat at Luxury Resort --the same date of the Judicial Conference Citation Hearing. Sometimes, over the transom faxes are really interesting. This PDF file of the anonymous fax shows that after the Judicial Conference Citation Hearing was set for April 3, West on February 28, 1997, invited legal journalists to a West expense paid boondoggle at the San Diego Hilton Beach & Tennis Resort. If the journalist stays over on Saturday night, West will pay the airfare. For those employed by new organizations with a code of ethics, West will let the journalist reimburse West $300 for all the three nights at the luxury resort with food, entertainment etc.

The published rate for this beach front hotel is $200 to $240 a night, not including meals, beverages, entertainment, transportation, sports tickets, and the educationals seminars. Educational seminar tutition generally cost $300 to $400 per day: so even if the journalist pays the $300, the weekend, excluding air fare, is still a $1500 value.

And, with enough booze, the journalists will be distracted from filing any stories on the hearing taking place across the country. This is the tenth year. Wait soon and we hope to be able to list the attendees. I like this piece: "Because we are asking you to extend your stay through Saturday, West will reimburse you for your dinner on Saturday, and breakfast on Sunday, up to a total for $30 for both meals. For participants attending the Padres game on Saturday night, West will reimburse you up to $10 for breakfasts on Sunday, April 6." That's is really nice, after all that hard work playing golf and watching the Padres, and having one of the dinners "under the stars" at Mission Bay.
For journalists employed by publications that do have a code of ethics, after the Citation Hearing in Washington on April 3, 1996, there will be a press conference at the National Press Club starting 1/2 hour after the hearing ends. I wonder where the West PR people will be: in Washington or in San Diego.

NEW Thursday, March 27, 1997
Example of paragraph numbered opinions in pdf format in printed case reporters from various jurisdictions.
A Canadian case.Canada has been using paragraph numbers for years.
A New Mexico case, as printed by West.
A South Dakota case, as printed by West. South Dakota was the first state to implement the immediately available permanent citation using the ABA format. However, many would not have located the page breaks at the locations chosen .. but, it is still official. Tax Analysts, for example, has chosen in its own publications to paragraph number only the text, and does not paragraph number headings.

NEW Thursday, March 27, 1997
Sorted By Sequence Number
Sorted By Docket Number
Example of Table showing how to cross reference sequence numbers to docket numbers for opinions of the United States Court of Appeals for the Third Circuit, linked opinions stored on the FTP Archive at Villanova Law School. This was prepared by HyperLaw because many federal court clerks have claimed in letters to the Automation Committee that this is virtually impossible to do.

NEW Wednesday, March 26, 1997
Selected Comments/Documents Submitted to the Committee on Automation Judicial Conference. Set 2, 80-115.
. This is an 80 K text file containing 35 scanned comments, converted and prepared by Tax Analysts, American Association of Legal Publishers, and HyperLaw.

NEW Tuesday, March 25, 1997
Selected Comments/Documents Submitted to the Committee on Automation Judicial Conference. Set 1, 1-79.
. This is a 300 K text file containing 79 scanned comments, converted and prepared by Tax Analysts, American Association of Legal Publishers, and HyperLaw.

Monday, March 24, 1997

NEW Saturday, March 22, 1997

Anonymous response of judges to Adminstrative Office survey. AALP is objecting to the form of the survey which is inartfully drawn and misrepresent the purpose of the proposal, the fact that the judges were not provided with the ABA report, and the failure to provide the identity of the judges in the survey summary. See the comments of Judge Clark making this same point. [text and pdf format.] This summary is 35 pages longs and is being made in PDF format only. This is a one megabyte file. We wish the Administrative Office would make the electronic text version of this file available: the text version would be far smaller. Some excerpts appear below. Survey Responses in RTF format.

Although judges are not identified in the table, the court and type of judge is identified. Accordingly, any communications concerning the comments should be directed to the Chief Judge of the court with copies to the Clerk, and if you have the time, to all of the other judges in that court, and of course copies to the Automation Committee.

NEW Friday, March 21, 1997, additional information April 1, 1997
HyperLaw Letter to Clerk, Fifth Circuit Re ABA Citation Proposal, March 21, 1997
replying to the Fifth Circuit letter from Charles Fulbruge, Clerk of the Court March 7, 1997.

An example of a Fifth Circuit Slip Opinion shows how closely a Fifth Circuit opinion resembles a West Case Report.

NEW Friday, March 21, 1997
HyperLaw Letter to Hon Richard Posner, Seventh Circuit Re ABA Citation Proposal, March 21, 1997
replying to Judge Posner's letter and Judge Williams' letter.

NEW Friday, March 14, 1997
HyperLaw Comments to the U.S. Judicial Comments Re Citation: March 14, 1997

NEW Friday, March 14, 1997
Department of Justice Comments to the U.S. Judicial Comments Re Citation: March 14, 1997

Selected (Mostly Adverse) Comments from Federal Judges and Clerks to the Judicial Conference Committee March, 1997

[Other than comments from federal judges and clerks, almost all bar, agency, and public comments were overwhelming in favor of the ABA proposal. Other adverse comments are contained in the table summarizing the response to the Administrative Office Survey. A letter from Judge Leif Clark critical of the survey and in support of the proposal is provided in text and pdf format. The text version contains other HyperLaw comments.]
NEW Saturday, March 22, 1997
George A Vannah (a bankrupcy court clerk?)
writes objecting to the use of the sequence number aspect of the proposal.

NEW Saturday, March 22, 1997
Letter from Frank Dosal, Clerk of the United States District Court, District of Minnesota.
Surprise of suprise, the judges of the Minnesotat Distirct Court (source of Mead and Oasis) met on February 26, 1997, and reached a consensus that the federal court should not adopt the ABA proposal.

NEW Saturday, March 22, 1997
Judge David D. Dowd, U.S. District Court, Ohio, stated that "I believe citation to the West Publishing Co. reporter provides sufficient uniformity. Where opinions are also reported on electronic databases, those service can simply cite to West as has been done to date." He also, not knowing that the small practioners overwhelming support the proposal, and under the misimpression that the citation will require everyone to use electronic databases, states that the proposal "would have serious consequences for sole practitioners and small law firms that cannot afford access to electronic databases. Requiring parallel electronic citations for all cited case authorities in briefs, etc., would be absolutely cost-prohibitive for such attorneys."

NEW Saturday, March 22, 1997
Hon. Norma L Shapiro, chair of the ABA Judicial Division writes that three judicial conferences that are part of the division supported the proposal, and three did not. Again, her comments again indicate a misunderstanding of the proposals. She states that "This would leave courts that are not online without precise citation to readily-available authority. Thus, she assumes that the new cite would not appear in the book versions -- apparently unaware that West is and will have to use the paragraph numbering in its books. Then she states that it is premature because their is litigation on star-pagination. This is the old "find a reason to delay": the ABA, AALL, and Wisconsin reports emphasize that the proposal is intended to provide an immediately available permanent cite -- and moreover that even if West star-pagination were in the public domain, it would still provide preferential advantages to West. Interestingly, she cc:'d the Conference of Chief Justices. She does not provide the comments of the three conferences in favor of the report.

NEW Saturday, March 22, 1997
Samuel L. Bufford, Bankruptcy Judge, Central District of California, wrote in opposition because he believe that "Numbering the paragraphs after an opinion is completed is a substantial job." As a basis for this comment, he attached a "15-step set of instructions" prepared by his supervisor of training, after the consulted with WordPerfect. The steps are complicated and involve using the outline feature to number the paragraphs and other elaborate steps. His letter proves three things: (1), the survey should have stated "assuming that paragraph numbering and opinion numbering could be automated and would not take more than a few minutes per opinion" (2) that, as HyperLaw states in its comment, using the automated numbering features in word-processing programs is doable, but a complex way to go; and (3) one should not use WordPerfect tech support for advice on an automation issue that will be used by thousands of judges. There are office automation experts out there -- everywhere.

NEW Saturday, March 22, 1997
Norman Meyer, Clerk of the Court for the Eastern District of Virginia, expresses "significant concern regarding the logistics" in a court with "four divisions spread across cities 200 miles apart with over twenty judicial officers, each issuing many decisions on a regular basis." He also had problems if the system included both published an unpublished opinions.

He then states that "Ultimately an automated system may be possible, but I do not see one now."

Meyer's issues are similar to those raised by HyperLaw in the past and asked that they be dealt with specifically in the ABA and AALL reports. Clearly, though, the logistic problem can be solved with automation -- but, that will only happen if the AO gets ahead of this issue, and stops being the anchor.

And, in that regard, as I point out in my comments, every single opinion is already entered into a computer system -- on a daily basis. That is the system that produces the docket sheets in the Pacer system. I have years of experience in designing databases, and, indeed, HyperLaw's database assigns sequential numbers to opinions. The present docketing system could be easily modified so that whenever the clerk's staff enters an opinion, to run a process or sub-program to go to a separate database that would provide the sequential number. This just cannot be all that hard.

And, considering that the Administrative Office has been tinkering with and modifying the docketing system for years, and considering that sequential numbering of opinions has been studied in the Administrative Office since at least 1990, one would have thought that careful database design planning would have anticipated this issue. Who knows, maybe there is a solution sitting there.

One other comment: his statement makes it appear as if the District Court considers West's Federal Supplement as its official reporter. One wonders how the 143 opinions from the ED of VA published in the Federal Supplement were selected and sent to West. He states that his "clear preference, though, is to have the system, if adopted, clearly exclude trial court unpublished opinions. The question I have is -- who is deciding what is an unpublished opinion -- did the ED delegate this to West.

Meyer does not comment upon paragraph numbering.

NEW Saturday, March 22, 1997
Harry T. Edwards, Chief Judge of the District of Columbia Circuit writes in opposition to the use of sequential numbers, but had no objection to the numbering of paragraphs "Although I fear that numbering would have to be done in chambers, and would create substantial headaches, I imagine that it might be feasible to accomplish." Judge Edward's expressed a preference to use the case (docket number) as an identifier. Most of Judge Edward's concerns have to do with administrative issues that ultimately could be resolved by a simple improvement in existing databases, that is the docketing database. Judge Edwards states that "the us of a sequential number to identify opinions complicates our internal operations. Each clerk's office will have to create and maintain new databases" ... etc. Judge Edward's is merely pointing out the preference to use the docket numbers to access information. But, a database table that has two fields: one the sequential number and the other the docket number is pretty much a no-brainer system wise. Note that HyperLaw had suggested that the docket number be included as well as the sequence number in the standard citation, to resolve the concerns of Judge Edwards, and to provide redundancy. But, other felt that this was too complicated. Ultimately, all of Judge Edward's could be easily met with thoughtful enhancements to the present docketing system.

NEW Saturday, March 22, 1997
Judge T. S. Ellis Jr., District Judge from the Eastern District of Virginia opposes all parts of the ABA citation. He feels that it fails any cost benefit analysis" (I guess he like 10% yearly increases in the price of the Federal Supplement). He states "The ABA should stay our of interfering with judge's work." "As a matter of principle, neither the ABA, nor any other external organization has any business setting standards for judicial opinions, however innocuous the proposed standards may appear." I wonder if West Publishing Company is considered an external organization.

NEW Saturday, March 22, 1997
Judge Alfredo C. Marquez, Senior Judge, District of Arizona opposes the ABA proposal for all sorts of reasons and starts:

"Developing an alternative citation system I theory might be desirable, but realistically the proposed alternative, citing to the Original Order, is of little use to anyone wishing to read an opinion in published, hard copy form. West case reporter are commonly and conveniently available and hard copy court Orders are not. It is inconvenient, time consuming and expensive to obtain copies of Court Orders from clerks' offices."

He concludes "I see no reason for the Court to foot the bill for such an undertaking, especially when the primary beneficiary inheres to private reporter services."

One would assume that this judge did not read the ABA report.

NEW Saturday, March 22, 1997
Nancy Doherty, Clerk of the United States District Court for the Northern District of Texas generally complains about the increased workload, the fear that she would have to maintain a permanent repository, and seems to believe that

She states that "It does not appear to me that the courts are prepared to take over a service that historically has been provided in the private sector with few problems. Until such time that a system has been designed for federal courts to use to affix citation numbers, embed paragraph numbers and archive opinions and can be easily implemented with existing staff, I am adamantly opposed to our office taking on this additional responsibility."

She then goes on to state that "Diverting scarce systems resources to develop a new information system for opinions would be counterproductive and costly." This of course presupposes that what needs to be done is one hundredth as complicated as he suggests.

She concludes "I know there is a great deal of interest in getting opinions electronically rather than through a book publisher have been asked on several occasions to provide this kind of information. At this time we only provide it in hard copy and charge $.50/page. We expect many changes because of the advances in electronic publishing. However, I think the extra work should be borne by the vendors and not by the courts."

NEW Saturday, March 22, 1997
Chief Judge Procter Hug, Jr (of Nevada)., Chief Judge of the Ninth Circuit Court of Appeals writing on behalf of the Court Executive Committee opposes the sequence number because he prefers the use of the docket number or case number. He states that "A citation which does not include the docket number is of little value." Of course, the West cite never includes the docket number. But, he felt concern over the need to continually cross reference sequence numbers to docket numbers. What is interesting to me, is that neither Judge Hug or the others making this point explain why this is also not a problem with the West system Interestingly, when a case is published in West, no one goes back into the federal court docket system and enters the West cite. This makes you wonder what the real problem is.

As to paragraph numbering, "Nor do we favor requiring paragraph numbering. We believe the court should be responsible for the text of the opinions and intial page numbering." He does not provide any reason for this opposition.

Judge Hug coontnues "We do not believe the case has been made for the citation system proposed by the ABA resolution. We believe the current "Bluebook" system for citing opinions is an effective method of citing opinions." One of the fallacies here is that the Ninth Circuit never uses its own slip pagination and docket number after an opinion is published in the Federal Reporter, so, one wonders how serious the Ninth Circuit Judges are. In addition, I doubt if Judge Hug has picked up the Bluebook lately and read the new rule in the Sixteenth edition:

Rule 10.3.1 .... If the decision is available as an official public domain citation (also referred to as a medium neutral citation), that citation should be provided instead. A parallel citation to the regional reporter may be provided as well. When citing a decision available in public domain format, provide the case name, the year of decision, the name of the court issuing the decision, and the sequential number of the decision. When referencing specific material within the decision, a pinpoint citation should be made to the paragraph number at which the material appears in the public domain citation. The following fictitious examples are representative of the recommended public domain cite format:
Stevens v. State, 1996 S.D. 1, 217
Jenkins v. Patterson, 1997 Wis. Ct. App. 45, 157, 600 N.E.2d 435.

Interestingly, Judge Hawkins recused himself from this matter. Does anyone know why?

The Ninth Circuit's slip printer was acquired by Thomson a few years ago, and of course that now means that West is the court's slip printer. Incidentally, should the court wish, it could have West as the slip printer not only insert the paragraph numbers, but assign the sequence number to the published opinions.

End of public comment material re citation report.
NEW Wednesday, February 26, 1997
Proposed Technical Standards for Electronic Filing in the Federal Courts -- Administrative Office of United States Courts December 20, 1996
An example of an HTML brief filed in the United States Supreme Court on behalf of the American Association of University Professors is at

New February 25, 1997

  • JUDICIAL CONFERENCE OF THE UNITED STATES - ACTION: Notice of opportunity to comment and of public hearing on the ABA Citation Resolution. Ahearing is set for April 3, 1996. Comments are due by March 14, 1997.
    New March 11, 1997
  • HyperLaw Comments Concerning Judicial Conference 1992 Electronic Citation System. Five years after West last defeated a public domain citation system for the federal courts, it is back again. Here are HyperLaw's April 9, 1992 comments. Deja vu again.

    New February 25, 1997
  • Montreal Association of Law Libraries (MALL): Position Paper on Access and Dissemination of Quebec Legal Information
    New February 25, 1997
  • On the Net and the liberation of information that "wants" to be free A call for action by the United Nations, Universities, researchers, and development agencies, with reference primarily to international trade law This white paper discusses the need for access to the case law of countries that are participatory nations to the International Sale of Goods treaty and access to other law. It is notable because the database protection laws of the country of the author, who is from Norway, would mitigate against the type of access urged by the author.
  • The ABA Citation Report
  • ABA Citation Report Draft and HyperLaw Comments
  • HyperLaw Comments to ABA Citation Issues Committee December 8, 1995
  • The AALL Citation Report, HyperLaw Comments
  • MULTIPLICITY OF REPORTS. By John B. West, 1909. The founder of West Publishing Company explains the need for inmediately available citations.
  • HyperLaw Comments re Revisions to The Bluebook
  • ABA Citations Report Draft and HyperLaw Comments
  • 1987 Antitrust Complaint -- Mead v. West.

    Watch Cost of Law Library Drop With CD-ROMs, WEB and OnLine', The National Law Journal, December 16, 1996, Wendy R. Leibowitz quoting HyperLaw's President, Alan D. Sugarman as to failure of 2nd and 5th circuits to post corrections or amendments to opinions on their PACER bulletin boards. The article also quotes Judge Forrester concerning the so-called medium-neutral citation. [Note: Judge Forrester seems to have ignored the ABA primary recommendation of using paragraph numbering for pin-point citation and ignores the ABA explanation that the primary purpose is vendor neutral immediately available citation, not medium neutral citation.]

    Other Sites:

    Cleveland Thornton's Home Page Cleve has collected a number of links in the area of citiation reform and legal automation.