Author:   power@drs.state.vt.us (Marjorie Power) at ~Internet

Date:     3/14

Priority: Normal

BCC:      Citation at AO-OCPPO

TO:       citation@ao.uscourts.gov at ~Internet

Subject:  ABA Citation Resolution

To Judge J. Owen Forrester, Chair, Committee on Automation and
Technology.

Dear Judge Forrester:

     Thank you for the opportunity to comment on the ABA Citation 
Resolution. You asked for comments on the following questions:

     (1) Should the federal courts adopt the form of official 
citation for court decisions recommended by the ABA resolution?

     The courts should adopt an official citation which is not 
dependent on the medium in which the decision is published, but which 
can be used irrespective of format. Nowadays, there are many ways to 
acquire the text of a court's decision. You can directly from the 
computer screen, print it from a screen dump, receive it by e-mail, 
download it from an FTP site, from the World Wide Web, from a gopher 
site or a dial-up connection. You can store it on paper in a manila 
file folder or in electronic form on a diskette, a hard drive, a 
tape, or a CD-ROM, in any one of a number of file formats. It can be 
printed out in the users's choice of typeface and font size on 
various sizes of paper, or never printed. Each format will produce 
different page numbers (and some will have none at all). But, the 
language and the significance of the courts' decisions remain the 
same, and there is no intrinsic merit in one format over another, as 
long as it is possible to cite with clarity to relevant parts of the 
decision. It is irrational, in this brave new world, to enable people 
to find out what the law says in the comfort of their own homes and 
then require them to find their way to the law library to get the 
"blue book cite" if they want to share that knowledge with the 
court.

     Even if the pressure from these new media did not exist, the 
proposed citation system would be a great improvement, permitting a 
higher level of accuracy. The current system, using page references 
only, can be very general, particularly in the West publications of 
the federal Circuit and District Courts decisions. Large pages with 
small print mean that a page reference may still leave the exact 
point unclear, allowing, whether by inadvertence or design, 
unacceptable imprecision. This problem is obviated when the more 
specific paragraph reference is used.

     This change will make legal citation easier and less convoluted 
for the courts, the bar, and pro se litigants. Currently, we have to 
distinguish between citations to slip opinions, advance sheets, and 
bound volumes. As time passes, citations become obsolete. 
Memoranda and briefs must be constantly revised as a case moves 
through its various stages. References in older opinions become 
obscure. With the proposed system, the citations would be set at the 
moment the decision was issued and no further changes would be 
necessary as it passed through the different stages of publishing and 
other forms of dissemination.

     The current system of citation operates to discourage the use of 
new methods of disseminating the law and thereby impedes their 
further development. It encourages vague citation and wastes the 
courts and practitioners time up-dating citations.

     (2) The cost and benefits such a decision would have on the 
courts, the bar, and the public.

     The cost of producing this body of case law has already been 
borne once by the United States taxpayers through their support of 
the judiciary. To gain access to what they have already paid for, 
they are asked to pay again and again through state and local taxes 
used to purchase volumes of printed decisions for public sector 
lawyers and libraries, and they pay again through the costs of 
publications reflected in their attorneys' bills.

     Numbers of entities have come forward to provide low cost or 
free access to the decisions which embody our law. Many universities 
have projects providing free access to case law, such as the Second 
Circuit archive at Pace University. States like Vermont have made 
their supreme court decisions available on-line. An individual needs 
only access to the Internet or perhaps a CD-ROM. Often people can 
get access at their local library if they do not have a computer at 
home. But because of the antiquated citation system, the public 
cannot get the full benefit of these resources.

     I am a lawyer working for a division of Vermont state 
government. In this era of "small government", one of the few 
unlimited resources at my disposal is my Internet connection. 
Without leaving my desk, I can do most of my legal research either 
on-line or from a CD-ROM, but before I can give the court the results 
of my labors, I have to drive 24 miles round trip to the nearest law 
library, just to look up the cites. This is not an efficient use of 
my time. It is just a waste of the taxpayers money.

     Lawyers in private practice face similar choices. They 
must either invest in a larger library than they really need or spend 
time traveling to one of the two law libraries in the state. Either 
way, the client foots the bill. More unnecessary costs.

     I have heard that some judges have opposed the ABA resolution on 
the grounds that sequential numbering of opinions and paragraphs 
would be a costly burden to the judiciary and their staffs. I 
give little credence to such nonsensical rumors. Our judges and 
their staffs are intelligent and dedicated persons, who would not 
allow some slight personal inconvenience to interfere with a project 
so conducive to the public good. Fortunately, no such difficulty 
need be associated with the new citation system.

     At one time, I served as a hearing officer for the Vermont 
Public Service Board. In this capacity I was required by law to 
make "separately numbered findings of fact". In some cases, the 
findings were voluminous. In the early days of my employment, 
these findings had to be renumbered every time a draft was revised, 
leading to mistakes in sequence and disgruntled support staff. But 
the same computer wonders that have brought the universal citation 
issue to the fore, have also solved the sequential numbering problem. 
Most up-to-date word processing programs, such as WordPerfect (which 
I note is used by the Committee itself), can automate such numbering 
to ensure the effortless and accurate enumeration of paragraphs even 
after multiple revisions, additions and deletions, with no hardship 
for either judges or staff.

     Before taking a decision that would entrench the current system 
for another generation, please consider the real motivation of those 
who oppose the change. Is it inertia or unjustified fear of change? 
Is it a threatened commercial monopoly or other vested interest? The 
current citation system places an unnecessary burden on the limited 
resources devoted to the operation of our legal system. Under the ABA 
proposal, all participants in the legal process would benefit and the 
new found efficiencies of the system would inure to the benefit of 
the public as a whole.

                                   Sincerely,

                                   Marjorie Power
                                   power@drs.state.vt.us
                                   Division of Rate Setting
                                   103 South Main Street
                                   Waterbury, VT 05671
                                   802-241-2708