REPORT OF THE COMMITTEE ON AUTOMATION AND TECHNOLOGY'S SUBCOMMITTEE ON POLICY AND PROGRAMS CONCERNING STANDARD ELECTRONIC CITATIONS  

The Committee on Automation and Technology's Subcommittee on Policy and Programs held a public hearing on April 3, 1997, on the application to the federal judiciary of a standard, format-neutral citation system. The Subcommittee has completed its report, which was endorsed by the Committee on Automation and Technology. The matter will be considered by the Judicial Conference at its September 1997 session. 

REPORT OF THE COMMITTEE ON AUTOMATION AND TECHNOLOGY'S SUBCOMMITTEE ON POLICY AND PROGRAMS CONCERNING STANDARD ELECTRONIC CITATIONS  

On August 6, 1996, the American Bar Association approved an Official Citation Resolution urging all state and federal jurisdictions to "adopt a system for official citation to case reports that is equally effective for printed case reports and for case reports electronically published on computer disks or network services.⁽¹⁾" The system recommended by the ABA consists of four elements. First, courts would number the paragraphs in their decisions. Second, each decision would be given a distinctive designation consisting of the year of publication, the identity of the issuing court, and a sequential number assigned to the decision. Third, all citations would be to this distinctive designation and, if a pinpoint citation were desired, to the paragraph number where the specific reference would be found. Fourth, until electronic publications of reports become "generally available to and commonly relied upon by courts and lawyers," courts would still require parallel citation to "commonly used printed case reports." The parallel citation would be to the page of the report where the cited case first appears, and parallel pinpoint page citations would not be required. Under this system, a decision in a federal court of appeals would be cited as follows: 

Smith v. Jones, 1996 5Cir 15, ¶ 18, 22 F.3d 955.    

The Executive Committee of the Judicial Conference of the United States suggested that the Committee on Automation and Technology study the ABA Official Citation Resolution and recommend whether the judicial conference should take action on the resolution. The chair of the Committee on Automation and Technology delegated to the Subcommittee on Policy and Programs the responsibility for developing a response to the executive committee's suggestion. Commencing in February 1997, the subcommittee solicited written comments from judges, other court personnel, and the public. The comments were solicited in advance of a publicly-announced hearing on the issue. The one-day hearing occurred on April 3, 1997 in Washington, D.C.

 

The subcommittee received over 400 comments from judicial officers, most of them in response to a questionnaire sent to all judicial officers by the Director of the Administrative Office of the United States Courts. The responses reflected widespread skepticism about the ABA proposal. While the comments reveal varied reasons for this skepticism, an underlying theme is that the present system works satisfactorily and that there is no need for change. Thus, there is no justification for the courts to impose upon overworked clerical personnel any additional burden required to implement and administer the proposed citation system, no matter how minimal that burden might be. Responses from other judicial personnel, especially appellate court clerks, were consistent with the responses of judicial officers.

 

The subcommittee also received over 600 responses from members of the public. These responses were as overwhelmingly favorable toward the ABA proposal as the judicial responses were negative. The subcommittee finds that the tenor and substance of some public responses reflect intense jockeying for competitive advantage among private legal publishers. Other responses, however, especially those received from attorneys, expressed the view that adoption of the ABA proposal would ultimately facilitate public access to federal court decisions and that the costs of such access would be significantly less than what attorneys are now required to pay for legal materials.

 

Anyone submitting written comments was allowed to request an opportunity to be heard at the April 3 public hearing. All requests were accommodated, and thirteen persons made presentations at the hearing. Arguments made at the hearing did not vary from those made in written materials.

 

Although the subcommittee believes that some form of media-neutral citation system is in the long-range interest of the federal judiciary and the public, it perceives problems with the ABA proposal, as the proposal is currently formulated. Contrary to the assumption implicit in the ABA proposal (and in contrast to the state systems where the proposal has been implemented), there is a question as to whether the judicial conference could mandate that all federal courts adopt the specific elements of the ABA proposal. Exact forms and sources of citation are matters which have been left to individual courts for decision. In a few instances courts have local rules addressing the issue, but most forms and sources of citation appear to be governed by a simple practical imperative which is not necessarily subject to a uniform national rule: that litigants must cite to a source which can be readily and conveniently located, retrieved, and used by the judge or court deciding a particular case.

 

Even if the judicial conference were to recommend, on a precatory basis, that federal courts adopt the citation system suggested by the ABA, the subcommittee believes that the proposal inevitably enmeshes the judiciary in competition among private interests currently engaged in disseminating federal judicial opinions. The fourth element of the ABA proposal, for example, envisions a transition period during which there would be a requirement for parallel citation to "commonly used printed case reports." Although this language is facially neutral, it is clear from the ABA's illustrations and from discussion at the hearing that this would usually be a citation to material published by the West Publishing Group. Indeed, some speakers at the hearing objected to this aspect of the proposal on exactly this ground. On the other hand, the proposal that pinpoint citations be accomplished by insertion of paragraph numbers in each opinion and that the parallel citation to a printed case report not contain a pinpoint page number is regarded by some as an attempt to skirt any copyright West may have in its "star paging" system, a system in which an asterisk in West's electronic opinion permits ready pinpoint reference to a page in West's printed opinion. The subcommittee understands that the existence of such a copyright is an issue currently in litigation. It does not believe the judiciary should effectively moot that litigation or otherwise take action which would reasonably be perceived as giving one private party a competitive advantage over another.

 

These reservations regarding any attempt by the judicial conference to implement the ABA's citation proposal have led the subcommittee to advance an alternative approach. The primary assumption underlying the proposal is that judicial opinions are public documents and that it is in the best interest of the judiciary and the public for such opinions to be made available to judicial officers, litigants, and the public as quickly and inexpensively as possible. While official case reports (United States Reports, for example) have historically seldom been available to the public on a timely basis, the subcommittee sees no reason why this should be so if the opinions were posted electronically. Creation and maintenance of a central database of federal opinions would appear to be a matter undoubtedly within the authority of the judicial conference. It would also avoid the judiciary's involvement in competition between private legal publishers while allowing those publishers to receive opinions from the database and use the opinions just as they do now.

 

Although the subcommittee favors the concept of a centrally-maintained, publicly-accessible database of opinions, it does not now have answers to certain critical questions. Foremost among such questions are the costs of creating and maintaining such a database and the identity of the entity responsible for its creation and maintenance. Numerous technical questions concerning citation format and other details have also been brought to the attention of the subcommittee. It is therefore the subcommittee's recommendation that the Committee on Automation and Technology undertake the responsibility of getting answers to these questions and formulating a plan for further action. 

1. A copy of the ABA report is attached to this item.