HyperLaw E-Mail Message March 23, 1997
The Automation Committee of Judicial Conference is holding a hearing in Washington, DC on April 3, 1996.
In anticipation of the hearing, the Automation Committee and the Administrative Office of U.S. Courts conducted a survey of judges. The responses were largely negative, but there is more to the story than that. The responses indicate a glaring lack of understanding about the ABA Citation report. That is no surprise. The AO did not send a copy of the full report to the judges.
One Bankrupcty Judge, JUDGE LEIF M. CLARK, who was in favor of the proposal, had the following to say as to the process:
"I am concerned that the materials furnished in this survey were woefully inadequate in addressing what I believe are very real issues for the judges who are being asked to complete this survey. The questions in the survey are "bottom line," and do not reflect the nuances of the issue, or the myriad of reasons that a given judge may have answered in the way he or she did. As a result, I think it will be dangerous indeed to draw any conclusions of value with regard to the attitude of the federal judiciary to this issue."
His entire statement follows. Other judges in response to the suvey made similar comments. On the whole, those responding to the survey tended to be negative, and many highly negative. A PDF image file (1 MB) of the responses is on the HyperLaw WEB site. We hope to obtain the electronic version of the responses, which are in tabular form and do not identify th judge, on the WEB site in a few days.
In addition, some of the more highly critical letters are posted on HyperLaw's WEB site, again in PDF inage format, and some are summarized on the WEB site.
Following is the survey, and Judge Clark's response.
********************THE SURVEY
This is the survey form sent by the Administrative Office to all Federal judges, magistrates, clerks, etc. The ABA Resolution was sent out, but the extensive thoughtful report of the ABA Committee was not sent. Among the troubling aspects is that question 3 completely misrepresents the intention of the report.
The ABA report speaks of an immediately available permanent citation: the question ignores the extensive discussion in both the ABA, AALL, and Wisconsin reports that emphasize the many reasons apart form West copyright claims, which are the basis for the proposal.
********************ABA RESOLUTION ON UNIVERSAL C1TATION SYSTEM
FEDERAL COURT JUDGE SURVEY FORM
1 Should the clerk of your court be required to add an official citation number beyond the case number to each opinion?
2. Should the federal judiciary Fequire the use of the official citation?
Permit it?
3 Should federal judges number the paragraphs in fin opinion so that there may be Pinpoint citations in which no private sector company can have a copyright.
Name of Judge: ________________________ Circuit: _________
Court: _______________________ Date:________
Please return this form to: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Fax Telephone Number: (202) 273~l33s
Mailing Address: Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544 Please return this form by March 14,1997.
************************COMMENTS OF JUDGE LEIF M. CLARK, U.S. BANRUPTCY JUDGE, WESTERN DISTRICT OF TEXAS MARCH, 1997
**************************
Memorandum
TO: Appellate Court and Circuit Administration
Division ATTN:ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
FROM: Judge Leif M. Clark
U.S. Bankruptcy Judge
Western District of Texas
P 0. Box 1439
San Antonio, Texas 78298
DATE:(SIC)
RE: Comments regarding the ABA Resolution on Citations
I have a few comments to accompany my response to the survey initiated by the Administrative Office, Appellate Court and Circuit Administration Division.
A. First and foremost, the basic concept proposed by the ABA Resolution is sound policy, for the following two reasons:
1. The courts of this country ought not be "hostage" to a private publisher, which can claim copyright protection for pagination, format, and the like. Ever since I first entered law school, I have marveled that the "official reporters" for both state and federal courts around the country are private publishers. How odd!
2. The new pagination suggested by the ABA appropriately lays the groundwork for the coming age of electronic access to information, including court decisions. Ought there really to be a distinction between those decisions mailed to a private publisher and those decisions not mailed to a private publisher? Are there not important precedents at the local level with which local lawyers might be familiar, while lawyers outside that jurisdiction may remain in the dark? Truly equal access to justice demands equal access to such precedents, and electronic access promises just that. As more and more opinions of judges are "scanned" into the data base not only of private publishers but also the database of the courts themselves, the notion of a private publisher exercising some sort of domain claim on these decisions will (and ought to) become increasingly anachronistic. Few things could ease this process more, it seems to me, than a system of universal citation like that proposed by the ABA.
B. These general comments having been noted, let me add a few more specific points.
1. Will the universal citation system proposed apply only to circuit courts and their decisions? The ABA Resolution appears not to be so limited, but it was difficult to tell from the materials sent me. In fact, I found the materials woefully short on background information of any sort at all - all out of keeping with the normal sort of survey usually conducted by the Administrative Office. Why is that?
2 `What is an "opinion"? Does it include all orders (a very critical issue for a court that signs thousands of orders a year, most of which are "form orders" prepared by counsel)? Only orders that are denominated "opinion"? Would it include "memorandum decisions," or simply "decisions"? This becomes much more of a problem at the trial level - and not simply a problem for the judge but also for the clerk of court who is expected to assign a number to that decision. How does the clerk know which matters are to receive a number? How does the clerk know what number to give the matter, in a multijudge division or jurisdiction? Would there be a "divisional" breakdown required in the citation format? Would there be a separate numbering maintained for each judge at the trial court level, or would numbering be applied to decisions by any judge at the trial level?
3. `Who would decide what receives an "official" citation? Would bankruptcy decisions continue to be cited? Frankly, 1 think they need to be, but some of my colleagues on the district court might well disagree, especially given that magistrate judge decisions are nominally not published currently. Perhaps they should be. Will this end up becoming a political issue - or worse, a "turf' issue?
4. Would there be a way in which courts could designate a given writing as not an "opinion," so that it could not be cited? Does this allow the courts to control the scope or direction of precedent?
5. Does the numbering of paragraphs really cause any problems with the or "readability" of decisions? Some of us (perhaps unwisely) fancy ourselves pretty good writers and may find the mandatory numbering of paragraphs constricting.
6. Would there be separate numbering for footnotes, or would they be expected to follow the paragraph from whence the footnote comes (1 would expect the latter, but the resolution is silent on the issue).
7. `What about addenda or "exhibits" that might be attached to the opinion? Would those be "numbered"?
8. `What would be the standard citation format for bankruptcy court decisions?
C Overall, despite the questions, I favor a universal citation system freed of its ties to a given private enterprise. The problems are there to be solved, but the ultimate goal appears to me to be both worthy and likely to accelerate the automation of legal research--a positive move in my view
D. I am concerned that the materials furnished in this survey were woefully inadequate in addressing what I believe are very real issues for the judges who are being asked to complete this survey. The questions in the survey are "bottom line," and do not reflect the nuances of the issue, or the myriad of reasons that a given judge may have answered in the way he or she did. As a result, 1 think it will be dangerous indeed to draw any conclusions of value with regard to the attitude of the federal judiciary to this issue. For example, the first question might be answered "no" by someone simply concerned about the use of the verb "required" in the question, or by someone who believes that someone other than the clerk ought to be doing the assigning. Yet that same person may well favor some form of assigning an official citation number. What will the Appellate Court and Circuit Administration Division hope to conclude from the answers to the first question? With neither any particular background materials (beyond the bare resolution of the ABA), nor refinement in the questions asked, any conclusions drawn from this survey are inherently suspect.
E. 1 am also concerned that the tenor of the questions seems to be pitched to encourage a negative response to the ABA Resolution. Certainly we cannot offer an "unbiased" reaction on behalf of the Judiciary if we have in fact built bias into the questions, thus loading the answer.
Thank you for affording us the opportunity to have input into this important issue. 1 hope that the Administrative Office continues to closely examine and pursue the issue.