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HyperLaw Comments to the U.S. Judicial Comments Re Citation: March 14, 1997
HyperLaw, Inc.
17 W. 70 Street
NY, NY 10023
www.hyperlaw.com
212-787-2812
212-496-4138 (Fax)
sugarman@hyperlaw.com
March 14, 1997
Via Facsimile: 202-273-1555
Via Internet: citation@ao.uscourts.gov
The Honorable J. Owen Forrester
Committee on Automation and Technology
Judicial Conference of the United States
c/o Appellate Court and Circuit Administration Division
ABA Citation Resolution
Suite 4-512
Administrative Office of the United States Courts
Washington D.C. 20544
Dear Judge Forrester:
Enclosed please find HyperLaw's written comments in
support of the implementation by the United States courts of
the ABA Citation Recommendation.
HyperLaw hereby requests the opportunity to be heard for 15 minutes at the public hearing to be held on April 3, 1997. As part of its presentation and if computer display facilities are available and with the permission of the Committee, HyperLaw wishes to demonstrate the ease of inserting paragraph numbers in court opinions using the computer programs described in HyperLaw's comments.
These comments are being delivered electronically. Following by express mail will be ten binders containing a printed copy of these comments together with attachments containing supporting information.
Thank you very much for providing an open forum to discuss this important issue.
Sincerely,
Alan D. Sugarman
Statement
Alan D. Sugarman
President HyperLaw, Inc.
For Submission to the
Committee on Automation and Technology
Judicial Conference of the United States
Hearing To Be held April 3, 1997 v
[1] I am Alan D. Sugarman, President of HyperLaw, Inc., a CD-ROM publisher of federal court opinions. These comments will address a variety of technical and practical issues.
[2] These comments will not dwell on the public policy issues. However, as I observed several years ago in the first national press article on these issues: "[t]he US Courts have only [primary] two jobs: They resolve individual disputes and they publish their decisions as guidance for everyone else to follow."1 The Courts should not relegate this second function to private enterprise.
[3] Moreover, in preparing these comments, I reviewed the 1991 federal court proposals for an electronic citation system including 1992 comments that HyperLaw submitted exactly five years ago. I almost was inclined to merely change the date on that comment letter from April 9, 1992 to April 3, 1997 and submit those earlier comments to the Committee. The issues were clear then–had the federal judiciary then adopted the proposal, the public would now have five years of citable federal case law in the public domain, over 100,000 opinions created at considerable public expense.
[4] In that five year period, West Publishing Company has earned nearly 2 billion dollars in profit, which might give one a clue as to why West and its new Canadian owners continue the backroom campaign of disinformation to derail and delay and frustrate what leading members of the bar have concluded is in the public interest. And, last year, private persons were able to garner billions of dollars of extra monopoly proceeds in the sale of West as a result of a monopoly that hinges upon the federal courts' reluctance to assume the burden of providing citations and dissemination of their own opinions. Not only was the public required to bear these extra costs, but the market barriers created by lack of a public domain citation and electronic dissemination of authoritative opinions has limited the access to the public of the law and thwarted the development of specialized law products. These barriers currently thwart efforts of lawyers to file and disseminate electronic briefs, containing the primary source information such as citeable case law.
[5] HyperLaw has been active in citation and court opinion dissemination reform since 1991. HyperLaw has provided comments concerning and promoting proposals for electronic and public domain citations to numerous courts and professional associations addressing this important issue. As noted above, HyperLaw provided detailed comments to the Administrative Office in April, 1992 when the Judicial Conference last considered the issues of public domain citations2. Also, in 1992, HyperLaw submitted a statement to the House Subcommittee relating to the copyrightability of citations and text of court opinions. Exclusion of Copyright Protection For Certain Legal Compilations: Hearing on H.R. 4426 Before the Subcomm. on Intellectual Property and Judicial Administration of the House Comm. on the Judiciary, 102nd Cong., 2nd Sess. 313 (1992) (Statement of Alan D. Sugarman, President, HyperLaw, Inc.) HyperLaw helped organize an October 19, 1994 public meeting sponsored by the Taxpayers Assets Project, the purpose of which was to reach a consensus to adopt paragraph numbering for pin-point citations of court opinions. HyperLaw was a founding member in 1995 of the American Association of Legal Publishers which was organized to promote vendor neutral citations and I am a Director of the association.
[6] HyperLaw also submitted comments on public domain citations to the Wisconsin State Bar and the Wisconsin Supreme Court in 1994 and 1995 and to the American Association of Law Libraries in 1995 and 1996. In November, 1995, HyperLaw presented comments at the hearing held by the American Bar Association Committee on citations and thereafter submitted comments on the ABA's draft proposal. I have spoken before various groups concerning these issues, most recently before the Board of Trustees of the New Jersey Bar Association, which has since recommended adoption of the ABA style vendor neutral citation.3
[7] HyperLaw's positions on the immediately available public domain citation may be found in the submissions made by HyperLaw to the ABA Committee on Citations–and may be found on HyperLaw's WEB site, http://www.hyperlaw.com/hlreport.htm.
[8] The 1996 ABA proposal is in many ways a refined version of the initial Electronic Citation System ("ECS") proposal developed by the Administrative Office and the Library Program Subcommittee in 1991. In the last six years, the concept of a public domain citation system has been studied and debated by many different bodies and organizations–it has been vetted and revetted, and overwhelming approved by the professional committees that have studied the issue. The initial ECS July 18, 1991, Draft Report proposed a sequence number to identify opinions and a an optional pin- point citation using slip opinion or manuscript page numbers (although that first report stated that paragraph numbers were preferable, but may be too much of a change.) The final draft omitted the pin-point citations, after being opposed by those with substantial commercial interests in the existing citation system. HyperLaw, in its April 9, 1992 comments to the Administrative Office stated:
The Subcommittee in the first report mandated pin-point citation; unfortunately, in the second report, pin-point citation became permissive. Is this a mere technical issue of concern only to computer experts and librarians? We think not. This relaxation seriously undermines the basic purposes of the initiative and leaves undisturbed proprietary interests who assert monopoly rights in the current citation system used by the courts. * * * The Subcommittee in its July Report proposed a viable and comprehensive citation format: a unique identifier for the decision and pagination or segmentation of each decision (pin- point citation). The new citation was to be considered an official authoritative citation.
The October Report is far different–the Subcommittee abandoned the requirement that the electronic decisions contain a pin-point citation, despite the fact that almost all of the disinterested commentators called for pin-point citation as a important feature of any citation system. Moreover, both dominant on-line legal research services include pin-point citations. * * * In conclusion, we strongly support the October report, except, that we believe that is does not go far enough. We hope that the Subcommittee will revert back to its original course: Rename the report the "Standard Citation to Federal Court Opinions", require pin-point citation, and make the citation permanent.
Letter dated April 9, 1992 from Alan D. Sugarman to L. Ralph Mecham, Director Administrative Office of the United States Court, copy on file at http://www.hyperlaw.com/eleccite.htm.
[9] Although the 1991-1992 Electronic Citation System proposals were subsequently tabled by the full Judicial Conference, these proposals formed the basis of the Wisconsin State Bar proposal, the American Association of Law Libraries proposal, and the American Bar Association study.
[10] However, the earliest reference that I have found to the ABA style system (found while searching through exhibits filed in the 1988 West v. Mead trial) is an article written by the founder of West Publishing Company in 1909 (John B. West, Multiplicity Of Reports, 2 Law Library Journal 4 (1909), also found at http://www.hyperlaw.com/jbwest.htm) where John West stated:
All that is necessary is that all decision shall be consecutively numbered in the order in which them are . rendered, and shall be reported and published in their numerical order. The bound volumes of reports should bear appropriate labels showing the number of the first and last cases therein contained. The volumes may be paged according to the present method of paging, but the number of the case should also appear on each page.
When no opinion is filed or the opinion is withheld or withdrawn because rehearing is granted or for any other reason, the title of the case with its number should be printed in the reports in its proper numerical order, with a statement of why no opinion appears in connection therewith, and the subsequent decision when filed should receive a new serial number.
The result of this would be that every decision of the court would he accounted for and the searcher would know if there is anything in the files which is not in his reports.
This numbering system would make possible the use of an official citation in all those works, of permanent character which must now either leave out the official citations or leave out the new cases not yet published in the official series. In short, each case would be marked and identified unchangeably and unmistakably by one citation, authentic, universal and immediately available.
[11] The copyright claims of West Publishing to citations and the text of court opinions certainly fuel the interest in and underscore the need to establish a citation system that is in the public domain.
[12] However, it needs to be stressed that even were West to concede that it has no copyright or other property interest in its citations or were to dedicate the citations to the public domain, there would still remain the issue that a West page number based system would not be vendor neutral (West would have its citation before other vendors and other vendors would have to bear the cost of inserting the page numbering after the fact, possibly even having to republish opinions.) A West based citation system would not be immediately available, thereby again meaning that immediately disseminated versions of court opinions would either be not citable, or would have a cite that would change once the permanent citation became available. All of these act as barriers to widespread dissemination of final authoritative citeable opinions.
[13] This is why West continues its behind the door whispering campaign replete with misinformation and distortion, since public domain citations threaten the West hegemony. That is plain and simple.
[14] Not infrequently, choice of words sometimes governs debate on policy issues–so one could be pro-citation choice or pro-public access. Unfortunately, the proposed new citation system frequently is called the "public domain citation"–this term is not adequate to describe either the system or the reasons that the system is desirable, and may indeed be misleading. For example, many jurisdictions have "public domain" citation systems–but many of these citations are not available immediately upon dissemination (not immediate), may be prepared by private vendors under contracts with courts (and are therefore not "vendor- neutral" because of built in advantages to the private vendor), or may not be permanent (such as slip opinion citations.) Of course, where there is no public domain official citation, as is the situation with the federal district and appellate courts, then there are myriad of public policy reasons for adopting a new citation methodology.
[15] The phraseology chosen by the ABA Committee to describe the citation proposal is an "universal, permanent, immediately available citations" established by the court, echoing John B. West's prescient 1909 statement. By its nature, such a citation will be "vendor neutral" and "public domain" because it will appear in the opinion as it is issued by the court. The other term used is "medium- neutral"–as discussed below, the paragraph pin-point citation is without doubt medium neutral, in that it can be used easily so in any print or electronic medium as is discussed below.
[16] The Committee needs to distinguish carefully between the two different components of a citation: one is the opinion identifier (traditionally, the volume number, reporter name and first page of an opinion), and the other is the pin-point citation (West's star-pagination, or in the proposal, paragraph numbering.)
[17] Practically and intellectually each component of the citation raises different issues. This point needs to be emphasized, because even were the Committee to recommend delay in implementing a sequential numbering scheme, we submit that that it is reasonable, economical, and practical to immediately commence with the use of official court inserted paragraph number for pin-point citation.
[18] The so-called citation license that was an outgrowth of the DOJ's approval of the merger of West and Thomson is not an answer, in part for the reasons just set forth above in: it would not be immediately available, and even if free would not be vendor-neutral. Moreover, the license agreement is not commercially reasonable and is unacceptable for reasons not fathomable to the theoreticians that negotiated and endorsed it. It is cumbersome, and so designed to create subtle and not so subtle barriers. Although "approved" by the District Court, the approval in the context of the emasculating Microsoft decision, only means that the license was within the "reaches of the public interest"–meaning only that the Department of Justice made a barely colorable argument in support thereof.
[19] Paragraph numbering of court opinions is mainstream. It has been successfully used in Canada for years by Thomson's Canadian subsidiary Carswell, in opinions of the EEC, by the United States Court of Military Appeals, by the courts of Maine, New Mexico, and South Dakota, and by the Bible. At least two electronic publishers presently insert paragraph numbering for federal opinions: Tax Analysts and Versuslaw–unfortunately, each does it differently and so paragraph 5 in one version is not the same as paragraph 5 in the other. This is why the courts must do the numbering. There is just no need to sow confusion by having the same court opinions have different paragraph numbering depending on the publisher. HyperLaw has not paragraph numbered its opinions so as not to confuse users with unofficial numbering.
[20] Numbering paragraphs can be accomplished without a drain on court resources. The courts and publishers described above have accomplished the numbering of opinions with ease.
[21] Moreover, it is possible to automate the function using the following procedure which may be automated.
a. When an opinion is being drafted or is in final form, a marker is placed wherever a paragraph number is needed. The marker could be a tag such as "
" or " ", or . b. The marker could be inserted by a simple macro. For example the macro might insert the marker wherever there is a paragraph mark and a tab mark.
c. The opinion author or proof-reader would verify the paragraph number locations and remove or add new markers as needed.
d. A simple macro would then run that would substitute the markers with a paragraph number.
Of course, fancy programs are not needed: paragraph numbering may be accomplished by manually inserting the paragraph numbers.
[22] HyperLaw has developed a WordBasic program for Microsoft's Word For Windows. Attached as Appendix 1 are code fragments which explain how to automate paragraph numbering.
[23] HyperLaw would be prepared to prepare customized programs for the myriad of special circumstances and formats. However, the key code fragments that HyperLaw is contributing herewith for use by the courts would permit court word processor support personnel competent in WordBasic and Word Perfect macros to develop simple macros to be operated by the opinion preparer or proofreader.
[24] And, emphatically, we urge that the automatic numbering features available in word-processing programs NOT be used: these numbers become ephemeral. Adding a new paragraph–to make page breaks appear as desired, for example, will renumber everything below. This will create many headaches– and anyone using these automatic numbering features may end up wasting hours, when the methodology HyperLaw suggests will do the trick in minutes. Actually, it is possible that the horrific projections of burdens on the courts perhaps is based upon devious demonstrations of paragraph numbering by using the wrong approach or technology.
[25] In order to provide a magnitude of the work required, the Federal Reporter and Federal Supplement alone contain approximately 15,000 full opinions each year. There are over 800 Article III judges that produce these opinions. Each judge has a secretary and two law clerks. Thus each Article III judge issues on average 20 to 25 published opinions per year. Unpublished opinions tend to be shorter, and thus easier to number. The federal court system is highly computerized. There are more computers than employees, according to the Administrative Office. The federal judiciary in recent years has received in excess of one billion dollars for computerization alone.
[26] Even were opinions to be hand numbered (and tools to expedite numbering are easily programmed in modern word processing programs) clearly the burden is easily handled by the law clerks and secretaries available to each federal judge.
[27] As to assigning sequence numbers, one notes that every opinion receives a docket entry which is maintained on a computerized docketing system. For every opinion for which a sequence number is required, there are probably 50-100 other docket entries. As just one possibility, it would be quite simply to modify the docketing software to have the sequence number assigned when the opinion is docketed. It just defies logic to argue that assigning a sequence number to the occasional opinion in a case is overwhelming burdensome and complicated, when day in and day out federal court staffs assign docket entry numbers to the flood of motion, pleading, notice, etc. which is done day in and day out by court staffs. A number is a number.
[28] Sequential numbering of opinions is doable. The Courts of Appeals for the Third and Sixth Circuits have been numbering opinions available on their bulletin boards for years. Many publishers of official versions of opinions maintain internal sequential numbering of slip opinions just to keep track of them in the publication process
[29] One example is the number assigned by Reporter of Decisions for the United Stated Supreme Court. A sequential number known as the "R" number is applied to the slip opinions of the court when issued, and that is the order in which the opinions appear in the United States Reports. One will find that that these R sequence numbers are used to number the computer files on the GPO bulletin board versions of Supreme Court Slip Opinions. Why the Supreme Court does not use those numbers on the printed Slip Opinions and in the United States Reports is anyone's guess.
[30] At the District Court level, for years, the bulletin board of the Eastern District of Pennsylvania has applied a sequential number to each opinion.
[31] In the federal system there may be some glitches in using sequence numbers. First, there is the so-called unpublished opinion and there the court may opt not to assign sequence numbers. There are also decisions that fall somewhere between and order and an opinion. Thus, as a safety valve, where a court elects not to assign a sequence number, then an opinion identifier citation based upon the docket numbers should be defined. [Of course, paragraph numbering should also be applied to any of these unpublished orders/decisions that are over a few paragraphs long.]
[32] As to District Courts, its clear that the predecessor proposals are really not quite up to the task of sequentially numbering opinions from all of the ninety-four district courts: assigning sequential numbers in the federal district courts will no doubt require up-front development time to develop programs and procedures. Thereafter, little day to day resources should be required. There are two issues: one, is someone or some program at the district court level would need to assign the numbers sequentially –again, a computerized system could be developed with ease. Second, one would have to decide whether all district and bankruptcy courts should use one sequence of numbers, so that opinion number 1997-5333 may be from the Eastern District of Pennsylvania and opinion number 1997-5334 may be from the Eastern District of New York. This could be accomplished, from a systems point of view, and, indeed, HyperLaw numbers all Court of Appeals opinions sequentially across the circuits. Whether this should be done is questionable, because I do not foresee any print publisher deciding to enter the market of publishing all district court opinions (including procedure and bankruptcy opinions that now appear in West's Federal Rules Decisions and West's Bankruptcy Reporter.)
[33] As an electronic publisher, I believe that case law will be disseminated and accessed only electronically sooner than we would think. [If you wish to read opinions on paper, as I do, it is cheaper and easier to print the opinion from electronic media than to locate and photocopy the opinion from a book.] The technology has caught up at the hardware and software levels, and, notebook computers with high quality screens and integrated CD-ROM drives have arrived a reasonable price levels far faster than I would have dreamed, and the Internet is of course the Internet.
[34] The important issues of authenticity will be handled, no doubt, by digital signatures, an issue which this committee cannot ignore for too much longer. From the point of view of electronic publications, it does not really matter if the case are numbered sequentially court by court, or throughout the whole district court system. However, as John B. West points out, one of the advantages of sequential numbering is that it permits one to identify and manage sets of opinions and to easily identify when an opinion is missing. That, of course, is one reason why courts even now sequentially number slip opinions for internal use so as to easily manage their publication.
[35] I do not foresee alternative competitive print versions consolidating the Federal Supplement, Federal Rules Decisions, and Bankruptcy Reporter and indeed I foresee that complete sets of court opinions will be primarily electronic in the not-too-distant future. Accordingly, one wonders whether it would be worth delay to develop a methodology and computer programs to sequentially number opinions on a nationwide basis for all federal district courts. Thus, I would tend to recommend that the opinions be sequentially numbered within each district, circuit, or bankruptcy court, as has been done for years in the Eastern District of Pennsylvania and the Third and Sixth Circuits–I say this not because this is the ideal or best solution, but I suspect it will prove easier to implement than nationwide sequencing.
The Time Is Now!
[36] One might contend that the 1991 ECS proposals were premature, although I think not. Certainly those proposal were forward looking. Now with the explosion of the Internet and CD-ROM as the preferred method for disseminating opinions, implementation of the ECS proposals is now past due. The private vendor oriented system in use today is akin to voting rights restrictions. Rather than a poll tax, the proprietary citations present a citation tax which goes into private hands. As part of this analogy, there were many types of subtle restrictions used to prevent or hinder citizens from accessing their rights to vote: from taxes, inconvenient locations to register, and inconvenient times -- technically, anyone had access to vote, but the reality was different. Similarly, when considering a citizen's rights to access to the law, there a numerous barriers hindering the citizens from access to the stare decisis law, and the citation format is one significant barrier.
APPENDIX I
AUTOMATING PARAGRAPH NUMBERING
[37] Numbering paragraphs can be accomplished without a drain on court resources. The courts and publishers described above have accomplished the numbering of opinions with ease.
[38] Moreover, it is possible to automate the function using the following procedure which may be automated.
a. When an opinion is being drafted or is in final form, a marker is placed wherever a paragraph number is needed. The marker could be a tag such as "<InsertParagraphNumberHere>" or "<ParaNo>", or <pno>.
b. The marker could be inserted by a simple macro. For example the macro might insert the marker wherever there is a paragraph mark and a tab mark.
c. The opinion author or proof-reader would verify the paragraph number locations and remove or add new markers as needed.
d. A simple macro would then run that would substitute the markers with a paragraph number.
Of course, fancy programs are not needed: paragraph numbering may be accomplished by manually inserting the paragraph numbers.
[39] HyperLaw has developed a WordBasic program for Microsoft's Word For Windows. Following is a code fragment that performs the last step described above, and substitutes numbered paragraphs wherever the tag "<pno>" appears in the completed opinion manuscript.
Sub pInsertParaNumber iParNum = 1 sParaMarkBegin$ = "[" sParaMarkEnd$ = "]" EditFind .Find = "<pno>" While EditFindFound() Insert sParaMarkBegin$ Insert LTrim$(Str$(iParNum)) Insert sParaMarkEnd$ Insert Chr$(13) 'optional inserts an extra paragraph return iParNum = iParNum + 1 EditFind .Find = "<pno>" Wend End Sub
The code fragment above replaces all instances of "<pno>" with paragraph numbers surrounded by brackets: "[1], [2], [3], [4]".
[40] It would be very simple to change the code to use different a different format for the paragraph number by redefining sParaMarkBegin$ and sParaMarkEnd$. For example, the following code would substitute a hidden tag to create Internet enabled HTML versions of the opinion, which would permit each paragraph to be a target. Thus, the numbered paragraph 5 would have a hyperlink target name "PCITE5".
Sub pInsertParaNumber iParNum = 1 sParaMarkBegin$ = "<A NAME=" + "PCITE" sParaMarkMid$ = "></A>[" sParaMarkEnd$ = "]" EditFind .Find = "<pno>" While EditFindFound() Insert sParaMarkBegin$ Insert LTrim$(Str$(iParNum)) Insert sParaMarkMid$ Insert LTrim$(Str$(iParNum)) Insert sParaMarkEnd$ Insert Chr$(13) 'optional inserts an extra paragraph return iParNum = iParNum + 1 EditFind .Find = "<pno>" Wend End Sub
The foregoing would create the following HTML target tags: <A NAME=PCITE1></A>[1] <A NAME=PCITE2></A>[2] etc.
[41] When viewed with an HTML viewer like Netscape, one would just see the following: [1] [2] etc.
One could then link to these targets from other HTML documents.
[42] If someone prefers to use the paragraph symbol inside the bracket, one could use the following code:
Sub pInsertParaNumber iParNum = 1 sParaMarkBegin$ = "<A NAME=" + "PCITE" sParaMarkMid$ = "></A>[" sParaMarkEnd$ = "]" EditFind .Find = "<pno>" While EditFindFound() Insert sParaMarkBegin$ Insert LTrim$(Str$(iParNum)) Insert sParaMarkMid$ Insert Chr$(182) 'insert the paragraph symbol Insert LTrim$(Str$(iParNum)) Insert sParaMarkEnd$ Insert Chr$(13) 'optional inserts an extra paragraph return iParNum = iParNum + 1 EditFind .Find = "<pno>" Wend End Sub
This would insert the following tags wherever the marker "<pno>" appears in the text:
<A NAME=PCITE1></A>[1] <A NAME=PCITE2></A>[2] <A NAME=PCITE3></A>[3] <A NAME=PCITE4></A>[4]
[43] This is how the paragraph numbers would appear when viewed in an HTML viewer: [1] [2] [3] [4]
One could also quite easily strip out the hypertext links for the hardcopy version of the document.
[44] There are numerous enhancements that could be made to the programs: for example, placing the markers in the left margin, highlighting the markers in color, removing all numbers for renumbering, etc., features that HyperLaw has available in a full-featured version. HyperLaw would be prepared to prepare customized programs for the myriad of special circumstances and formats. However, the key code fragments that HyperLaw is contributing herewith for use by the courts would permit court word processor support personnel competent in Word Basic to develop simple macros to be operated by the opinion preparer or proofreader.
[45] We urge that the automatic numbering features available in word-processing programs NOT be used: these numbers become ephemeral. Adding a new paragraph–to make page breaks appear as desired, for example, will renumber everything below. This will create many headaches.
1 Gary Wolf, Who Owns the Law, Wired, May, 1994, 98 at 138.
2 Letter of April 9, 1992 to L. Ralph Mecham, attached hereto, and found at HyperLaw's WEB site.
3 HyperLaw (with Mathew Bender & Company) is a party in a pending litigation against West Publishing Company concerning copyrights claimed by West in citations and text of court opinions. Summary judgment was granted in Matthew Bender's and HyperLaw's favor on the issue of citations. A trial was held in January 1997 on HyperLaw's challenge to West's claims to a copyright of court opinions (other than headnotes, syllabi, and summary), and briefing and argument has not been completed. HyperLaw also opposed the merger of Thomson and West Publishing Company in 1996 and in a recent decision Judge Paul Friedman permitted HyperLaw to intervene in the Tunney Act proceeding for the purposes of appeal.