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.