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HyperLaw Supplemental Comment Responding to West Comments, April 3, 1997
HyperLaw, Inc. Additional Comments to the Automation Committee Of the Judicial Conference of the United States April 3, 1997 HyperLaw Comments Concerning West Group Comments of March 13, 1997 ABA Citation Resolution: [1] HyperLaw wishes to provide the following observations concerning the comments of the West Group filed on March 13, 1997. SIXTH CIRCUIT CITATION EXPERIMENT: [2] West points out on page 3 that: Although the Sixth Circuit has continued to add ECS citations to its opinions, there apparently has been little use of these ECS citations as parallel citations or otherwise by either the bar or by the Sixth Circuit itself (or any other court). [3] West is correct as far as it goes. However, there are additional factors that relate to the non-use of the Sixth Circuit ECS citation:First, it was proposed by the Sixth Circuit as an electronic citation, not as the official citation for electronic and print, thus undermining from the beginning the Sixth Circuits conviction as to the efficacy of the citation. Second, the Sixth Circuit made the citation purely permissive, and by implication endorsed the West citation as sufficient Third, the Sixth Circuit decided to use the internal pagination to its slip opinion for the pin-point citation, eschewing paragraph numbers (the December 17, 1993 Sixth Circuit order was prior to the reports of the Wisconsin State Bar, the AALL, and the ABA.) Fourth, the Sixth Circuit did not insert the slip pagination as hard page numbers in its electronic versions, relying instead upon the automatic page numbering in Word Perfect. As a result, the slip pagination is not embedded in the text, and the Internet versions of the Sixth Circuit opinions provided by Emory do not include the internal pagination [nor do the WEB "table of contents" include the sequence number.] Fifth, West does not include the slip pagination of the Sixth Circuit opinions in the Federal Reporter. Sixth, West does not include the sequential citation for the case in the Federal Reporter. Of course, since the Sixth Circuit did not require the citation, there was no need for West to include the citation.[4] The lessons that may be derived from the Sixth Circuit experiment are:The citation must be mandatory, not permissive. The citation must apply to print as well as electronic citation. The internal pin-point citation, whether page numbered or paragraphed numbered, must be embedded in the electronic text disseminated by the Court. The court should at the very least assume sufficient control over its WEB dissemination to assure and verify that the citations are being used in the opinions being disseminated under the courts name.[5] The South Dakota experience shows that this type of public domain citation will work, and West will include the requisite information in its reporters, if the court makes the citation mandatory, and makes sure that the citation is in inalterable form in the initial version of the opinion disseminated by the court. REQUIRED USE OF PARALLEL PINPOINT CITATION: [6] West's biggest concern is that it wishes that the new citation system require not only parallel citation to the West opinion identifier citation (the volume and page number), but also require parallel citation to the West internal page number for pin-point citations. [7] West quotes the ABA report to state that a system of official citation should be "equally effective for printed case reports" and then West argues:West further believes that in order for a new citation system to be truly "equally effective" for print and electronic caselaw sources, parallel citation to a print course must be required."[8] West provides plausible arguments as to why there should be mandatory usage of the West first page citation to make a new system "truly effective" in print versions. [9] In contrast, West is unable and does not even attempt to construct an argument as to why there should be mandatory citation to the West internal pagination. That is because there is no plausible argument for that position. Since West has and is including the mandatory paragraph citation in its reports where inserted by the court, then the use of mandatory internal citations is not only internally duplicative, but will completely undermine the official citation. One reason for this is that it is extremely simple to construct cross-reference tables for the opinion identification citation, and virtually impossible to construct cross-reference tables for the internal citations. [10] If the West suggestion is accepted, then the situation will remain the same in the future: any researcher writing a brief will still require access to West reporters and any publisher of court opinions, in bulk or in a smaller selection, will be required to undertake the labor of inserting the internal pagination after the fact and obtain permission from West to use the internal pagination. And, finally, there will be no open, free, public, WEB type access with the West internal pagination because West will not permit it. PUBLIC ACCESS: PRINT VERSUS ELECTRONIC: [11] West makes a number of arguments to attempt to make it a protector, in some sense, of those who West claims can only research the law in print form. [12] West states at page 4:Since those involved in the citation controversies agree that the vast majority of legal researchers today (up to 80% of them) still rely mainly on print caselaw sources, it is not fair to implement a new citation system that would disadvantage the majority.[13] It is not true that everyone agrees with the "statistic" especially because the "statistic" is based upon a phony survey question asking whether legal researchers preferred to read an opinion on a computer screen [at a point also when the most computer screens were DOS based and of much lower quality than the standard screen today], rather than read an opinion on paper. I like to read my opinions on paper, which is why I have a laser printer. Most users of Westlaw and Lexis print the opinions for reading. Many researchers have the opinions photocopied from the case reporters for close reading. Moreover, the latest versions of printing from electronic sources provide print-outs that look as if they were obtained from books. [14] It is true that there is a class of users that rely mainly on print products. But what is the reason that they do: Is it because the researcher likes to go to the county law library (if there is one open to the public), sometimes driving miles and finding a time when the library is open, hoping the desired book available, and photocopying the cases on manual copy machines. Or is it because the researcher cannot afford access to Westlaw and Lexis and West CD-ROMs which include the required citation information? [15] West argues at footnote 2:West notes that this majority includes those who, for whatever reason, cannot afford computers or the use of electronic caselaw sources, and who therefore must rely upon the print caselaw sources available for free use at thousands of public law libraries across our country. This group often include solo or small firm practitioners and pro se litigants. These types of users should not be disadvantaged.[16] West is here either disingenuous or completely out of touch with reality. I challenge West to produce a list of thousands of public law libraries open to any member of the public with open stack access [or even closed stack access] to the Federal Supplement, Federal Rules Decisions, Federal Bankruptcy Reporter, and the Federal Reporter. This mischaracterization was once debated by West representatives on the Internet law-lib list, and West has been unable to present this list. [17] I know of no library in Manhattan with open stack access that meets that description. Second, the price of computers is not the barrier to most members of the public doing legal research -- its is the price of the electronic caselaw sources that are artificially raised by the West monopoly. Third, solo and small firm practitioners and pro se litigants are among the biggest supporters of public domain citations -- a review of the comment letters in support of the new citation systems would establish that. [18] This is nothing more than fear-mongering by West, and, indeed, is a manipulative way to provide a rationale for those opposing the new system to cloak themselves in a mantle of public interest. [19] Listen up: solo and small firm practitioners and pro se litigants are for this proposal. Most judges, big firm lawyers, and law professors at law schools really do not care to change any thing: they have more than adequate access to the law. WHAT WEST DOES NOT SAY: [20] What does West not say:West does not say that using paragraph numbers is not aesthetic and will somehow destroy the common law. How could West take this position? They have been using bracketed numbers for years at the beginning of paragraphs, and, even attempting to indicate where a judge starts and finishes a point of law by using these numbers. West does not say the sequence numbers are difficult to use. How could West take that position? Westlaw has been using numerically sequenced citations for years, and West's founder, John B. West in 1909 clearly explained how he was in favor of an immediately available permanent citation from the courts. West does not say that a docket number must be in the new citation. How could they? The West citation has nothing to do with the docket number of a case, and West's non- docket number citation has served its customers [although not the public] well for years. West does not say, as many district judges said in the survey and letters, that West likes the system whereby district judges send to West the opinions they wish to have published. Why would West not say this? Because, West bases its copyright in the Federal Supplement compilation on the basis that West, and only West, selects what is published in the Federal Supplement. So, West cannot admit this, even though covertly, this is a great deal for West to have the federal district judges send the opinions to them.[21] Clearly, West has backed off in its public rhetoric. But, we wish West would go further and tell the federal judges whom it has cultivated for a century, that, yes, a new citation system would be in the public interest, and would not interfere with the functioning of the federal judiciary. April 3, 1997 1