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3/21/97 HyperLaw, Inc.®
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HyperLaw Letter to Hon Richard Posner, Seventh Circuit Re ABA Citation Proposal, March 21, 1997</b>
HyperLaw's letter responds to <a href="posner.pdf">the letter of Judge Posner that was filed with the Judicial Conference Automation Committee on March 3, 1997. Judge Posner's letter refers to a <a href="williams.pdf">letter from Judge Stephen Williams of the District of Columbia Circuit. [The two letter are in Acrobat pdf format].
HyperLaw, Inc.
March 21, 1997
The Honorable Richard A. Posner
Chief Judge
United States Court of Appeals
For the Seventh Circuit
213 South Dearborn Street
Chicago, Illinois 60604
Dear Judge Posner:
[1] I am more than a little dismayed by your <a href="posner.pdf">letter of March 3, 1997 to Judge
Forrester, Chair of the Automation & Technology Committee,
in which you oppose the ABA citation proposal. I can only
believe that the proposal was somehow misrepresented or was
not accompanied with sufficient explanatory information.
[2] As a former student of yours at the University of Chicago Law School, I
am aware of your methodology of economic analysis.
Certainly, I would have expected you to conclude that
economic efficiency, for society as a whole, would dictate
that courts assign citations at the time of opinions are
disseminated. The subsequent costs to society based upon
current practice are inefficient, costly, and ultimately
lead to limited access by the public to the law. This
indeed was understood by John B. West, founder of West, as
explained by him in a 1909 article, which I enclose.
[3] In your scholarly writings, particularly in The Federal Courts:
Crisis And Reform, you have emphasized the role of judge-
made law in judicial decision making. The opinions of the
courts are essential to the operation our legal system.
Your writings exquisitely express the role of precedent.
Precedent is in a very real sense the law. At page 248 of
that book, you argue that law gives people notice as to what
is acceptable behavior and projects future rulings. Of
course, this is purely a theoretical position if the people
(and I exclude as "the people" here law professors, judges,
and well heeled law firms) do not have access to the law.>
[4] In your economic analysis of precedent, you clearly recognize that
uncertainty in case law invites litigation. See William M.
Landes & Richard A. Posner, Legal Precedent: A Theoretical
and Emperical Analysis, 19 J.L. & Econ., 249, 271 (1976).
To the extent that those who are expected to abide by the
law face artificial barriers to access to the law, then
uncertainty increases and economic costs of litigation
increase as well. It does little good to clarify the law
with precedential decisions, and then hide the opinions
behind barriers.
[5] I am also aware of the position you had taken on charging for access
to Seventh Circuit opinions and I believe that the reasoning
in that order remains sound:
Charging a fee for this previously free
public information amounts to a confiscatory tax on
public information. If we had charged nongovernmental
users a fee during the last year, they would have paid
$10,800. When compared with the costs to the court of
about $468 per year, it is obvious that such a charge
is not a user fee, but a tax on previously free court
information.
In addition charging such a fee raises serious
questions as to whether the courts are dissuading the
many new computer services that have recently started
to compete with the large companies which have
traditionally provided the lawyers with legal research
materials. According to reports in the December, 1994
issue of American Bar Association Journal at pp. 38-39,
the Antitrust Division of the Department of Justice is
looking at barriers to entry in the computer-assisted
legal research market. The Department is looking for
ways to improve public access to federal court
opinions. Our system has no barriers, encourages public
access, and saves the government money. A fee system
will cost more than the current nonfee
system.
In The Matter Of Public Access To The Seventh Circuit
Bulletin Board System (BBS), Administrative Order, January
3, 1995.
The policy reasons to which you refer in the Order are the same that
underly the ABA citation proposals. Indeed, last week the
United States Department of Justice (to which you also refer
in your order) filed comments to the Judicial Conference in
support of the citation proposal which explains in detail
the economic barriers presented by the present system. I am
enclosing a copy of those comments.
[7] Among other things, in your Public Access Order you correctly noted that
increased cost in one area may in other areas actually
reduce overall costs. This is also the situation with the
use of an immediately available citation inserted by the
court. For example, if you wish to cite to one of your own
opinions, you would be able to use your own manuscript for
the identification and pin-point citation. You would not
need to locate the West version to obtain the citation and
to attempt to locate in the West version the location of the
point to which you wish to cite.
[8] Even were local costs to increase, it is likely that overall social
costs would decrease. Experience with public domain
citations has established that electronic case law reporters
are substantially less expensive where there are available
citable authoritative public domain citations. Thus overall
social costs would be reduced.
[9] If caselaw research costs were to be reduced, then local costs to the
court would be reduced, because the cost of research would
be reduced. It is interesting to note that the price of
Federal Supplement where West has a clear monopoly has
increased enormously in the last two years, even though raw
material costs, principally paper, have gone down. The
following message was recently posted by a Chicago law
librarian on the law-lib Internet list.
Date: Fri, 24 Jan 1997 15:55:31 -0600 (CST)
From: Frank Drake <arnstein@mcs.net>
Sender: owner-law-lib@ucdavis.edu
Subject: West Inflation
To: law-lib <law-lib@ucdavis.edu>
I just got volume 939 of Federal Supplement; the cost,
including shipping
and tax was $40.61.
Inflation history:
A volume in January 1995 was $33.30
A volume in January 1996 was 36.45
A volume in January 1997 is $40.61
1995-1996 inflation 9.5%
1996-1997 inflation 11.4%
I suppose the figures speak for themselves.
FRANK DRAKE
Arnstein & Lehr
CHICAGO
arnstein@mcs.com
The impact of these on the book acquistion budget, not only
for the federal judiciary, but for all other agencies and
departments of the federal government must be enormous.
[10] Also, there is the issue of first costs, because long term costs will be
reduced to society because the citation persists for years.
[11] Many courts have been manipulated into accepting the present system
because of apparent lower local costs, notwithstanding the
overall costs to society. For example, if a court accepts
discounted access to Westlaw and West books in return for a
variety of concessions and favors including the perpetuation
of the present citation system, certainly local costs to the
court are lower, at the expense of everyone else. I for one
do not believe the courts should enter into contracts to
purchase legal research services and books at prices lower
than that available to the general public.
[12] The foregoing analysis is not intended to be comprehensive, but
is provided only to suggest the possible analysis that could
be made of these issues.
[13] In your March 3 letter, you state:
"anyone with the West citation can readily locate the
opinion on-line if he prefers that to the book
version."
[14] This statement raises two issues: one is whether the purpose of
the proposal was sufficiently explained to you–and there is
an implication that this is form over substance. I will not
address the various policy reasons, because these are
adequately explained in the other documents which I enclose.
However, I would like to suggest that you are absolutely
incorrect if your "anyone" is to be taken literally. If
anyone means a law professor or student at the University of
Chicago Law School, you are correct. If anyone means a
federal judge with unlimited access to Westlaw, you are
correct. If "anyone" means any lawyer in a large law firm,
then you are correct. This class of people probably numbers
under 100,000 individuals. But, for everyone else you are
incorrect.
[15] While I was a student at the University of Chicago, the law for me was
easy to access, thanks to Law School's first class law
library. The primary resource that I missed when I left the
Law School (other than stimulating discourse) was access to
the law made available by that library. In all of New York
City, there is no comprehensive law library open to the
general public without restriction. As a practicing lawyer
there are a entire class of cases from middle class clients
and small businesses that I have turned down for one simple
reason: the client cannot afford reimbursing me for the
necessary on-line legal research. Legal research costs are
a particularly factor when the law (including unpublished
federal district court opinions) of other jurisdictions is
involved.
[16] In your letter, you state that paragraph numbering would "disfigure
and bureaucratize the opinion-writing process." I am not at
all sure what you (and Judge Williams who used the same
term) mean and this appears to be an uncharacteristic
exaggeration. I would assume that you would continue to
write your opinions the way you have always done so, and
that upon completion of your opinion writing, it would then
be paragraph numbered. If you so desire, and with minimal
training, you yourself could determine the location of
paragraph numbers, as described in my comments to the
Automation Committee. Interestingly, Judge Williams
recently decided a case refusing access to caselaw stored
upon on-line legal research systems maintained by the
Department of Justice and the United States Air Force. Yet,
both DOJ and the Air Force have filed comments in support of
the ABA citation report.
[17] As far as disfigurement, the case reports in the West reporters have
always contained paragraph numbers–although not every
paragraph receives a number, and no one has ever before
complained about disfigurement. Other jurisdictions
including the Canadian courts, have been paragraph numbering
opinions for years and, at least to my eye, their printed
reports do not appear to be disfigured. In all due respect
to Judge Williams, his comments about the civil law
tradition and the FCC is a little emotional, is it not? Do
you really contend that the common law system will in some
way be undermined by courts numbering each paragraph of
opinions? I enclose copies of recent West case reports for
New Mexico and South Dakota which include the official
paragraph numbers used by those courts. The disfigurement,
if there is any, in part depends upon how the numbers are
set in type. I hope you do not consider this letter to be
disfigured becuase it's paragraphs are number, and I have
selected a supercripted small font to avoid any claims of
disfigurement.
<[18] In your letter, you endorse the statement of Judge Williams where he
states:
The purpose of making possible pin [point] citations in
which no private sector has a copyright can be as well
achieved by allowing or requiring citation to pages of
the slip opinions, identified by *s. (That may require
insertion of some computer symbol in the computerized
version of the slip opinion, but I don't see why that
should be a difficulty.)
[19] Whether to number paragraph or pages received substantial attention
from the various committees and individuals who have studied
the best method of pin-point citation, and, after study,
there was near unanimity to use paragraph numbers (at the
academic level, the principal opponent of paragraph
numbering is a frequent paid West expert witness in case
citation proceedings.) There were a number of reasons for
this conclusion. For example, some opinions appear in both
manuscript and printed slip opinion and later bound volume
format. When going from one to the other the pin-point
pagination will change, which would mean that internal
cross-references would change. In addition, when
transferring a word processing version of an opinion from
one system to another or from one program to another, the
actual location of the page breaks will change. Even the
use of a font in one system that is not available in another
system will change the location of page breaks.
[20] In addition, there may even be a question as to what is page 1 of the
opinion–whether a cover sheet or a table of contents is or
is not part of the numbered pages. The only way to provide
permanent precision for the location of page breaks and the
page number is to insert a hard page break at the beginning
of every page, and to also insert the page number at the
beginning of every page. Of course, inserting hard page
breaks in many word processing program may have many
unintended consequences. And, the end result still is that
page breaks appear in the most inconvenient locations,
perhaps even in the middle of a citation.
[21] Remember as well that the proposed citation system must also work at the
district court level where the opinions exist only in
manuscript form, and must work for opinions that are never
published in print. Thus, the district court judges, even
were your suggestion to be accepted, would have to be sure
to provide precision and permanence by inserting hard page
breaks and page numbers–another "bureaucratic" task.
[22] Moreover, the Internet has already changed the way in which court
opinions are disseminated. It is important to use a method
that works well in the electronic environment, and paragraph
numbers work better (it is little known that the pagination
in Westlaw is different than the pagination of the same
opinion in book form, because of the inconvenient places
that page breaks tend to fall.)
[23] Indeed, it is instructive to inspect the Seventh Circuit opinions made
available on your Court's bulletin board: those opinions
contain no hard page breaks. Moreover, those opinions
include neither the page numbers of the original manuscript
nor the page number of the printed slip opinions.
[24] [The Seventh Circuit bulletin board opinions, unlike those in other
Circuits:
Do not include italicization and
underlining, not only in citations, but where
the opinion author may have emphasized a word
or phrase.
Do not include indentations which makes it
somewhat difficult to determine if a phrase was
quoted.
Are never corrected.
Are not supplemented with amending orders.
Do not include the names of counsel, factual
information of considerable importance to
researchers.]
[25] Reading between the lines of your and Judge Williams' letter, one
might conclude that you believe that the citation system is
a theoretical concept that some Administrative Office
bureaucrats and some techie ABA lawyers dreamed up, so as to
create new burdens for an already burdened courts. Nothing
could be further from the truth.
[26] For example, the ABA Committee was not a section committee but was a
special committee appointed by the President of the ABA at
the time (Roberta Cooper Ramo, a University of Chicago Law
School alumna.) The members of that Committee were
distinguished practicing attorneys, many of whom had
experience as judicial clerks. Judge Danny Boggs of the
Sixth Circuit (another University of Chicago Law School
alumnus and a former faculty colleague of yours) was an ex-
officio member who actively participated in the Committee's
deliberations.
[27] I hope that you will reconsider your letter. If you wish, I would like
to meet with you in Chicago to discuss these issues at
greater depth.
Cordially
Alan D. Sugarman
Class of 1971
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