405 W. College Avenue #206 Tallahassee, FL 32301-1433 March 11, 1997 Appellate Court and Circuit Administration Division Suite 4-512 Administrative Office of the U.S. Courts Washington, D.C. 20544 Re: Notice of Opportunity to Comment and of Public Hearing on the ABA Citation Resolution, 62 Fed. Reg. 803 To Whom It May Concern: 1 I am the Editor-in-Chief of the Florida State University Law Review. Although I write on my own behalf, my experience in making the Law Review the first continuously published traditional law review on the World Wide Web, see , has made me quite interested in the availability of primary sources of legal authority on the Web. "While the opinions of all U.S. Courts of Appeals are now made available on the Web, because the federal courts generally require citation to opinions in the case reporters of West Publishing Company, a private vendor, the opinions on the Web are entirely useless to anyone who wishes to cite them in a court document. Thus, I feel it would be in the public interest were the federal judiciary to adopt the vendor and medium neutral citation system approved by the American Bar Association this past August. While I set forth the bulk of my reasoning below, I would in addition refer the reader to an article I published last year examining the historical background and issues of copyright law that have led to the citation proposal. See James H. Wyman, Freeing the Law: Case Reporter Copyright and the Universal Citation System, 24 Fla. St. U. L. Rev. 217 (1996). 2 Case law today is electronic. Its expression in print-based formats such as West Publishing Company's National Reporter System, although certainly a necessity up until a few years ago, seems like an afterthought today. Courts compose their opinions electronically via word-processing software and then disseminate them electronically, either via modem to publishing companies such as West or to a court's own electronic bulletin board system (BBS), from where they are generally downloaded and compiled on a Web site or CD- ROM. However, these same courts continue to insist that citations to these opinions be to the afterthought -- the print-based reporter of a private vendor -- instead of the original electronic opinion itself. 3 The ABA citation proposal recognizes the reality of electronic opinions by providing an eminently useable citation form for these opinions. Instead of being relegated to a parenthetical at the end of a citation, the year in which the opinion was issued and the jurisdiction identifier come first, replacing the volume number and name of the private vendor's case reporter. Instead of a first-page number identifying where the opinion can be found in the case reporter, a number indicates that an opinion is, e.g., the fifteenth opinion issued by the court in the year in question. Finally, and perhaps most importantly, instead of a pinpoint page number more or less identifying the location of the cited material within the opinion, a paragraph number is employed, providing a much more precise form of pinpoint. 4 Perhaps the best way to gauge the utility of this scheme is to answer the arguments marshaled against it. First among these is the "citation to nowhere" argument, i.e., the notion that the new citation form does not inform the reader where he or she may find the cited case. Where the citation "91 F.3d 1574" tells the reader that the case may be found on page 1574 of volume 91 of the Federal Reporter, Third Series, the citation "1996 3Cir 15" just tells the reader that the case was the fifteenth decided by the Third Circuit in 1996. According to the citation-to-nowhere argument, the reader is left to wonder whether the case can be found in a legal newspaper, a case reporter, or on the Internet or CD-ROM. Thus, the new citation form will supposedly "make[] it much more difficult to evaluate the reliability of information sources" because "it is very likely that one will find variant texts between competing products." Robert Berring, On Not Throwing Out The Baby: Planning the Future of Legal Information, 83 Cal. L. Rev. 615, 632 (1995). 5 The risk of variant texts, however, is already present. For example, although the citation "91 F.3d 1574" SEEMS to indicate that the individual citing the case used the Federal Reporter, in actuality, it is just as likely, if not more so, that the individual used WESTLAW, LEXIS, or a CD-ROM. If these sources offered variant texts, the marketplace would quickly winnow them out. Similarly, unreliable publishers using the new citation format would find themselves either quickly out of business or shunned by legal researchers. Moreover, the risk of variant texts is a minor one because all providers will have obtained the opinion from the court BBS; to vary the text, the provider would have to actively alter it, and those that do will have a difficult time finding a receptive market. Finally, as the U.S. Supreme Court does with its Project Hermes, the prospect of central repositories such as the Internet servers of law school libraries within the federal circuits containing the opinions in their original word-processing formats fills in the "nowhere" gap to which this argument alludes. To find the authoritative version of a case, one would download the original word-processing file from one of these repositories. As a law review editor, I see a similar process already at work today: while the Law Review's "cite-checkers" often use WESTLAW or LEXIS to check a case, if there is any question about a cite, the cite-checker goes to the library shelves to check the "official" case reporter. 6 Another argument against the citation proposal is ostensibly an argument against all court-mandated citation forms: the so-called "open rule" through which courts allow citations to any reliable source. See, e.g., Donna M. Bergesgaard & Andrew M. Desmond, Keep Government out of the Citation Business, Judicature, Sept.-Oct. 1995, at 63-64. Thus, when a case is found only in a legal newspaper, the Internet, or a case reporter, the argument goes, courts should allow citation to those sources. The difficulty here is obvious: courts cannot be expected to subscribe to every conceivable provider of legal authority. While a number of courts allow practitioners to cite to unusual sources, provided the court and the opposing party are provided with a copy of the cited case, allowing such exceptions on a broad scale -- which would be inevitable with an "open rule" of citation -- would tax even the most organized court's logistical skills. The "open rule" is, in fact, little more than an argument for the status quo. Case reporter publishers, such as West Publishing, are currently regarded as the most "reliable" providers of legal authority; thus, most attorneys would continue to use such providers under an "open rule." Nevertheless, the ABA citation proposal is a slightly different, yet much more appropriate form of "open rule" because it allows attorneys to USE any reliable source rather than CITE to any reliable source; the citation is contained in the opinion and will thus be readily found in all sources. 7 A third argument contends that the ABA citation proposal would unnecessarily disadvantage print publishers and users of print-based case reporters. See Donna M. Bergesgaard & William H. Lindberg, A Dissenting View, in Am. Ass'n of L. Librs., Report of the Task Force on Citation Formats 30-33 (1995). The new citation format fails to provide the reader with information on where he or she might find the cited case in a print reporter, according to this argument. Moreover, print publishers would be forced to come up with translation tables and paste cluttered spine labels on their volumes. In addition, goes this argument, print is still the preferred medium for legal research, and moving to a nonprint-based citation form would require massive retraining. 8 However, it is the print publishers who are at fault for numbering their reporters by volume rather than by year, and for combining jurisdictions within a single volume. Such an approach was a welcome innovation a century ago; however, it cannot be allowed to restrain the movement of legal research into the more efficient electronic realm. Further, publishers such as West already provide translation tables today to aid those seeking to translate citations from official state reporters to citations for West's National Reporter System. One hardly sees West complaining that these official reporters disadvantage users of West's reporter system. Finally, the simplicity of the new citation format, with a year instead of a volume number and with its familiar jurisdiction identifiers at the core instead of in a parenthetical, hardly seems as if it would entail anything approaching "retraining." Moreover, those who are more comfortable reading cases in print are free to print out the cases they find. 9 The last of the major arguments against the ABA citation proposal involves an economics approach: the market should determine citation formats. See Berring, supra at 631. Because West Publishing has won the market over with its comprehensive case reporter system, the judiciary should not interfere by mandating a citation format that has no demand; the market will accept a new citation format when it is ready. However, the legal citation market is hindered from responding to any new proposals precisely because the judiciary does indeed mandate a citation format, albeit one that involves the use of West's reporters. Although this can quickly become a "chicken or egg" issue, in the end it is clear that the market favors West now because the judiciary favors West. Moreover, the questionable specter of market harm to a legal publishing giant should not be a consideration at all; rather, the judiciary should consider first and foremost the efficient operations of court business and the needs of officers of the court. The price of access to USEFUL (i.e., "citable") electronic legal information is artificially high because West Publishing asserts (quite questionably to my mind) copyright in the page numbers of its reporters. Entities wishing to provide legal information in electronic format to members of the bar must either pay West or risk litigation. These circumstances should underscore that the market is not in a position to determine citation formats when the judiciary mandates citation to West reporters and West virtually monopolizes the entire market. 10 The virtues of the ABA citation proposal are obvious. First, it is instantaneous. There is no wait for several months until the Federal Reporter or Federal Supplement is released or several years until the United States Reports is released. 1 A court opinion released within the past several hours would have the same citation it would have a decade from now. Second, the new citation format is more precise. Citing via paragraph rather than page number makes it easier to locate the cited material. Moreover, unlike page numbers, paragraphs are not arbitrary divisions; rather, they generally represent the complete thought of an author. Further, word-processing software makes assigning paragraph numbers in documents automatic. Indeed, I just now automatically numbered all of the paragraphs in this Word Perfect document by selecting a simple command from the menu. Third, the two pieces of initial information conveyed to the reader are not the volume number and name of a private vendor's case reporter, but rather the year the opinion was issued and the jurisdiction identifier for the issuing court. Together with the number indicating the order of the opinions release, an attorney researching electronically can easily locate the cited case because she knows that it was, e.g., the fifteenth opinion released by the Eleventh Circuit in 1997. Databases, either on the Internet or CD- ROM, would quite naturally be grouped in this fashion because they were released that way to begin with. Print publishers would presumably adapt by releasing volumes numbered by year instead of the publisher's own volume number. 11 Adopting the ABA citation proposal would revolutionize the legal information industry. Freed from the artificial constraints of a market dominated by a single, private publisher of case reporters, court opinions would become more readily available to both the bench and bar at a considerably lower cost. Publishers would compete by adding value to their compilations of court opinions, rather than by making spurious copyright claims in their arrangements of opinions. One can easily envision "plain vanilla" databases, hosted by law school libraries and offered free of charge to the public, through which users can search not only by keyword or party name, but also by citation. More complex search engines, such as those offered by LEXIS and WESTLAW, would be available to customers willing to pay. Because the citation and paragraph number are included in the opinion when it is released, it is not unrealistic to anticipate being able to type in a World Wide Web URL to call up a particular case. For example, knowing that Emory University law library hosts Eleventh Circuit opinions, someone trying to find the sixth paragraph of the fifteenth case decided by the Eleventh Circuit this year would could type in "1997 11 Cir 15.html#6" at the end of the the Emory library's URL and be brought directly to the precise paragraph within the opinion. It does not take much imagination to envisage electronically filed briefs containing links to opinions, with the software creating the document automatically recognizing, e.g., "1997 11 Cir 15, 6" and providing a hyperlink that can be used by anyone reading the brief to instantly call up the cited case. Unfortunately, none of this will ever come to pass if current citation requirements are maintained. By encouraging or even mandating citation to the print-based case reporter volumes of a private vendor, the federal judiciary hinders development in legal research, keeps the costs (which are passed on to the public) of such research artificially high, and keeps the legal information market closed off to all but a deep-pocketed few. By adopting the ABA citation proposal, the judiciary can in one fell swoop eliminate these problems. Private vendors already in the market will adapt. New vendors will come forward and provide electronic legal research capabilities currently unavailable to the sole practitioner, storefront Legal Aid attorney, or small firm. The law will become more universally available and more universally usable than ever before; it will truly become a "seamless [W]eb." I strongly urge the Conference to recommend that federal courts adopt the ABA citation format as soon as possible. James H. Wyman Tallahassee, Florida