Comments of HyperLaw, Inc.
¶1 I. Rule 10.1 Citation Format for Paragraph Numbers Used for Pin Point Citation— A Preliminary Technical Issue
A number of courts and administrative agencies have adopted the use of paragraph numbers as the preferred or official pin point citation (Colorado, South Dakota, United States Court of Military Appeals, Court of Justice of the European Communities, British Columbia). Other jurisdictions (e.g. Wisconsin) are considering such a change. Various association such as the American Association of Legal Publishers and the American Association of Law Libraries have explicitly endorsed paragraph numbering of court opinions. The American Bar Association has appointed a committee which is considering this issue.
¶2 We believe the Bluebook should help resolve the differences that have resulted as to how paragraph numbers should be identified when a case is cited in the text of a document. For example, South Dakota uses the paragraph symbol (¶), but the AALL Report recommends that the symbol not be used. The Sixteenth Edition should explicitly establish a standard.
¶3 HyperLaw agrees with the South Dakota approach: a paragraph symbol should be used within the citation appearing in text. It is clear and avoids confusion with sequence number citations, page number citations and Westlaw/Lexis * pagination. Where the symbol is not available, the abbreviation Para. may be used. Thus, the citation would be 3 S.D. 35, ¶¶3-5, not 3 S.D. 35, 3-5.
¶4 The rule should also discourage, if not prohibit, the use of paragraph numbers as opinion pin point citations where the paragraph number is not inserted by the court or agency issuing the opinion. This will avoid the type of confusion presented now by the existence of two different star (*) numbers used by Westlaw and Lexis.
¶5 HyperLaw supports the concept of court issued paragraph numbers for the reasons described by John B. West, the founder of West Publishing Company. John B. West argued, in support of court assigned unique citations, that "each cases would be marked and identified unchangeably and unmistakenly by one citation, authentic, universal and immediately available." John B. West, Multiplicity of Reports, 2 LAW LIBRARY JOURNAL 4 (1909) reprinted at 1 THE HYPERLAW REPORT 5, ¶23 (1995).
¶6 A paragraph numbering citation is the only way to provide an immediately available pinpoint citation, for otherwise, page numbering awaits print publication. In the case of unpublished opinions, page numbers are never assigned.
¶7 II. Rule 10.8.1(b) Citation to Electronic Databases and 10.3.1 Parallel Citations—Revive the Earlier Bluebook Rule.
At the time rule 10.8.1(b) and it predecessors were established, Lexis and Westlaw were the only providers of case law in electronic form. Now, in 1995, there are numerous providers on CD-ROM, three on-line non-internet providers, and an increasing number of Internet providers. A citation format needs to be encouraged that permits effective citation to all sources of case law.
¶8 The rule makes the assumption that even within a provider such as Lexis or Westlaw, an opinion will reside physically in only a single database. This is indeed no longer the fact. Lexis and Westlaw both publish CD-ROMs which may or may not replicate databases on those systems. Both Lexis and West publish state and circuit specific CD-ROMs of federal cases. Moreover, there are now many other sources of the same data available on CD-ROMs and on the Internet. So, the citation should in general not be location specific. (for a discussion of the "Nowhere Fallacy" see The AALL Citation Task Force Report, 1 THE HYPERLAW REPORT 1, ¶¶ 10-17.)
¶9 Thus, the emphasis on databases, such as "Lexis, Genfed Library" or "1991 U.S. Dist LEXIS" will lead to a multiplicity of confusing citation formats.
¶10 HyperLaw believes that the focus should remain on the key elements already provided by Rule 10.8.1, which are the case name, docket number, court, and date. Where a court elects to assign an official sequence number, such number can be added to the key citation information (A citation system needs to account for situations where a court does not assign an official citation. A system also needs some redundancy and inherent meaning, which argues for the use of a docket number.)
¶11 In order to facilitate vendor neutral citations that are universal, these key elements. already identified in rule 10.8.1 (b). should appear in all citations, even citations to opinions appearing in books. Citations to book and database locations should be considered optional secondary citations.
¶12 III. Rule 10.3.1 Parallel Citations -- The Fifteenth Edition Gift to the "Relevant Regional Reporter"
The Bluebook should be careful as to undertaking rule changes that provide competitive advantages and allocate monopoly power to one publisher over another.
¶13 The Fifteenth Edition modified 10.3.1 (a) and (b) to eliminate the need in many situations to cite to official reporters. We do not believe that the Bluebook considered the economic and market impact of this change. The change was a blow to the market for official reporters and public domain citations, and a competitive gift to the publisher of the "relevant regional reporter." By restricting the market for public domain sources, competitive pricing and public access suffered.
¶14 The Bluebook should accord preference to the official reporters and citations established by particular courts. The Bluebook should not undermine the efforts of those in the judiciary.
¶15 Rule 10.3.1 should revert to the earlier version—requiring citation to the official reporter as a minimum.
¶16 In addition, Rule 10.3.1 should require citation to the key citation information (docket number, case name, and court), especially where there is no public domain reporter and citation. Among other things, citations to the key citation information would permit location of an opinion on any reasonably well constructed electronic source including on-line databases, the Internet, and CD-ROMs.
¶17 In no event should the sole citation authorized by the Bluebook be to the products of a sole commercial vendor. Rule 10.3.1 is anti-competitive, increases the costs of legal research, and makes it difficult for researchers not using traditional resources to locate precedent. Moreover, the Bluebook cannot ignore the fact that many courts require that citation be in accordance with the Bluebook.
¶18 IV. Other Issues Related to Electronic Media and Citation Rules
¶19 The following points are technical issues that do not raise policy issues.
¶20 A. The Use of Spaces in the Names of Sources of Information
The Bluebook does provide a consistent rule as to the use of citations within abbreviations identifying the name of reporters and law reviews. Thus, there is a space in F. Supp., but not in U.S. or F.3d. Most state reporters abbreviation use spaces, but regional reporter abbreviations such as N.W.2d do not. On the whole, law reviews abbreviations, such as HARV. L. REV. and HARV. ENVT. L. REV., use spaces.
¶21 In the electronic environment, the use of spaces within a unitary piece of information diminishes the uniqueness and therefore retrievability of the cited information.
¶22 First, in most full-text retrieval systems, each word is separately indexed, so HARV. ENVT. L. REV. is indexed under each of the constituent words. But, in some retrieval engines, single letters such as "L." are considered to be "stop" words and are not indexed at all.
¶23 If one were searching for volume 3 of HARV. L. REV., one could easily retrieve 3 HARV. ENVT. L. REV.
¶24 An electronic search for "F.3d" will have greater retrieval accuracy and speed than a search for "F. Supp."
¶25 In general the accuracy of searching for citations within text is highly diminished by the use of spaces.
¶26 In order to increase searching accuracy, HyperLaw in its federal cases CD-ROM removes the spaces in citations to sources such as "F.Supp." and "Fed.R.Evid."
¶27 The point of the foregoing is to urge the Bluebook, at least in establishing new abbreviations, to remove the unnecessary spaces. In the ideal world, spaces would be removed wherever possible, providing a citation form easier to use in electronic media. It would be a bold and useful step for the Bluebook to make this change now.
¶28 B. The indented quote.
Should the Bluebook consider a new section for material to be disseminated electronically, such as "Electronic Document Notes" to parallel "Practitioner's Notes", we suggest that particular attention be applied to block quotations. Style guides for printed documents do not require quotation marks for lengthier indented quotations. However, when the document is exported in ASCII form it is not unusual to have the indentation disappear. In certain Windows word processors, the mere deletion of a paragraph end symbol can remove the formatting, i.e., indentation, of an indented block quote.
¶29 It is highly dangerous to have ephemeral formatting convey highly important information, i.e., that the text is a direct quotation.
¶30 Accordingly, for text destined for electronic publication, the indented quote, of any length, should be surrounded by quotation marks.
¶31 C. The Bluebook - 1995-2000 - Guidelines for Electronic Publishing of the Law.
We suggest that the Bluebook consider a new section for the 1996 edition—a list of guidelines for electronic publication, which would include, for example, the suggestion in the preceding section covering indented quotations. These guidelines could suggest minimal Hyper Text Markup Language tagging. It may perhaps be a little premature (by 9 months) to provide more definitive standards, but the printed version should contain guidelines.
¶32 Finally, the Bluebook could use the Internet to conduct the creation of electronic style guides and could assist in hosting a standard development process similar to that occurring on the Internet today, as the Internet publishing standards evolve. We do not think the year 2000 will be far too late to consider these standards.
November 8, 1995
Alan D. Sugarman President HyperLaw, Inc. 212-787-2812 212-496-1438 (fax) sugarman@hyperlaw.com www.hyperlaw.com HyperLaw Comment November 8, 1995 Page 2 of 5