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Department of Justice Comments to the U.S. Judicial
Comments Re Citation: March 14, 1997
BEFORE THE
JUDICIAL CONFERENCE OF THE UNITED STATES
COMMITTEE ON AUTOMATION AND TECHNOLOGY
WASHINGTON, D.C.
)
Notice of Opportunity To Comment On The )
American Bar Association Citation Resolution )
COMMENTS OF THE DEPARTMENT OF JUSTICE
Joel I. Klein
Acting Assistant Attorney General
Antitrust Division
Communications with respect to this document should be
addressed to:
Rebecca P. Dick
Deputy Director of Operations
Christopher J. Kelly
Senior Counsel for Intellectual Property
Frances E. Marshall
Special Assistant
Antitrust Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Room 3208
Washington, D.C. 20530
March 14 , 1997
Comments of the United States Department of Justice
1. As the American Bar Association Special
Committee on Citation Issues has stated, "continued growth
of electronic publication of case reports is certain."1
Equally certain, however, is that today's standard system of
citation impedes the growth of electronic publication of
case law and competition generally among publishers of
American case law. By adopting the ABA's recommended
citation form, the federal courts would eliminate this
barrier, fostering increased competition among case law
publishers and leading to swifter and less costly access to
case law for attorneys and their clients. Because the
competitive benefits from use of the recommended citation
form should substantially outweigh the costs it imposes, the
United States Department of Justice recommends that the
federal courts adopt the ABA's recommended citation form.
2. The Department of Justice has several interests in
this matter. As an enforcer of our Nation's antitrust laws,
the Department has a strong interest in encouraging
competition in the provision of case law materials in order
to encourage the development of better products and service
at lower prices. As an advocate for equal justice under
law, the Department seeks access for all citizens to our
legal system; higher costs for legal representation and
related services, including legal research, diminish that
access for some. In addition, as the Nation's largest law
firm, the Department is itself a consumer of case law
research products, with a strong interest in obtaining
swift, comprehensive and accurate access to judicial
opinions at the lowest possible price to its client, the
American people.
3. As the ABA Report notes, the advent of
computerization and high-speed data transmission makes swift
and accurate access to judicial opinions feasible in a way
that was unimaginable 25 years ago. Now, rather than
waiting for printed copies of opinions to arrive via a case
reporter such as West Publishing Company's Federal Reporter
or a topical developments service like United States Law
Week, practitioners and other citizens can read opinions
within hours of issuance. Case law publishers can assemble
collections of decisions based on whatever criteria they
think the market might demand and present them to users
either on-line or on CD-ROM. Users then can choose between
comprehensive case law collections or ones that more
narrowly target their substantive or geographic interest;
either way, they can do so without filling the bookshelves
that printed case reports would require. Today, as the ABA
Report points out, a lawyer can carry the equivalent of a
library in her briefcase.2
4. These gains, however, will not be fully realized
if electronic media remain subject to an archaic citation
system that penalizes their use. For all its virtues, that
is what the current citation system does. By keying on a
particular publisher and by identifying the location of
cited text on the basis of that publisher's layout of a
printed book, the current system unnecessarily hampers the
usage of other publishers' electronic products in two ways.
The chosen publisher enjoys a special advantage and the
entire system is founded on a type of textual division that
is undesirable in electronic media.
5. Under the current rules of practice in most state
and federal courts, a practitioner ordinarily must cite a
case by indicating its physical location in a particular
series of printed, bound case reports. That series is, with
only a few exceptions, West's National Reporter System.3
6. Consequently, to have a useable case law product,
a case law publisher other than West itself must be able to
indicate to the reader where each case it publishes may be
found in West's printed system -- and not only the first
page of each case, but each portion of it, so that the
reader may employ pinpoint citation to the particular part
of the case relevant to his analysis. Publishers other than
West can convey this information only through star
pagination, the placement of symbols in the text of
decisions indicating where pages end and begin in the
corresponding West volume.
7. West, however, contends that star pagination to
its system infringes its copyrights by copying the
"arrangement" of those volumes. And, until it agreed with
the Department recently in an antitrust consent decree to
license the right to star paginate to its reporters,4 West
had only licensed star pagination to be used by the one
other major on-line case law provider, Lexis, and one other
print publisher (in its Virgin Islands reporter). Moreover
West, as the monopoly licensor of an essential input into
these firms' products, was in a position to set a floor on
their prices. Thus West, as virtually the only publisher of
printed case reports capable of satisfying practitioners'
need to utilize the current citation system, has been able
to dictate the amount and price level of competition in the
market for case law products and services.
8. Whether star pagination infringes West's copyright
is in litigation in two circuits. The U.S. District Court
for the Southern District of New York rejected West's claim,
granting summary judgment for one declaratory-judgment
plaintiff and partial summary judgment for another.5 In the
Eighth Circuit, a third publisher is appealing from a
summary judgment in favor of West.6 The United States has
filed amicus curiae briefs in both of these infringement
cases, supporting the argument that star pagination does not
infringe any valid West copyright.
9. If West prevails in this litigation, because of
the recent Thomson-West consent decree, case law publishers
will still be able to employ star pagination, by license at
a royalty rate no higher than that specified in the decree.
But they will be left at a distinct competitive
disadvantage, and their costs will be significantly higher
than they would be if the standard citation form were not
based on one firm's proprietary product.
10. Even if the plaintiffs prevail and may star
paginate to West's reporters without having to pay a
royalty, star pagination is not costless. It still entails
the expense of accurately ascertaining where page breaks
fall in West's volumes, and accurately incorporating that
information in another product. This process unnecessarily
consumes resources which could be more efficiently employed
to make a better or less costly product.
11. The additional cost of star pagination is
particularly troublesome in connection with electronic case
law products. When published in electronic media, cases may
be easily found by employing information intrinsic to the
case, such as parties' names, the court, and the docket
number; there is no need for extrinsic information, such as
where a particular publisher has placed the case in its
printed reports. And page numbers, which vary with the
format of a particular printed version, are wholly
irrelevant to the electronic "location" of a case. By
incorporating star pagination, the new electronic products
serve the existing citation system; instead the citation
system should serve efficient access to cases within the new
products.
12. Use of a media-neutral citation system loosens
these restrictions on competition among case law providers.
Increased competition is likely to reduce the cost of case
law access to attorneys and their clients significantly.
For example, before Louisiana introduced its vendor-neutral
citation system,7 West offered its CD-ROM product there for
$5400. After the citation system's introduction, West's
price fell to $2500 in response to another publisher's
offering of a competing CD-ROM for $1500.8 As the current
litigation over West's copyright assertions shows, there is
no shortage of firms eager to compete in the provision of
case law. Adoption of the ABA's recommended citation system
will eliminate a needless entry barrier, lower costs, and
enable new firms to compete on the merits of their products.
13. Moreover, there is a special value to the federal
courts' adoption of a uniform system. Nationwide adoption
will ensure uniformity among the courts, so that a citation
permissible in the Southern District of New York may also be
used in the Northern District of California. A comparison
of the citation systems of the Sixth Circuit and the state
courts of Louisiana and South Dakota, each a sensible
solution standing alone, suggests the confusion and
compliance costs that would certainly arise if individual
circuits or districts each adopted their own preferred
media-neutral citation form, a distinct possibility absent
action by the Judicial Conference.
14. In addition, the Judicial Conference is in an
excellent position to lead the way for all the Nation's
courts. Its adoption of the ABA's recommended citation
system will set an influential precedent for each state
court system to adopt the same citation form, both to free
competition among publishers of its case law and to ensure
ease and compatibility for its state's attorneys when they
practice in another jurisdiction.
15. The Department of Justice also supports the ABA's
recommendation that, for some limited period of time, the
federal courts "strongly encourage" parties to add parallel
citations to "commonly used printed case reports."9 The
move towards electronic publication of case law is
evolutionary, the product of technological advance and
consumer demand. The purpose of a new citation system is to
accommodate that change, not to mandate it. Not to allow
for a parallel citation to a commonly used printed report
might indeed be a mandate.10 Many practitioners are still
unfamiliar with electronic case law products and the
computer technology on which they depend, or do not have
ready access to them. Use of a purportedly media-neutral
citation system to force them into the electronic world
would be inappropriate. Moreover, the current citation
system will not disappear in any case: for practical
reasons it will remain necessary for citation to cases
predating the new system's adoption. Eventually, the
parallel citation may become less necessary to easily locate
cases in printed volumes -- perhaps because print publishers
will have developed some means, such as a cross-indexing, to
guide researchers from a case's citation in the new format
to its physical location in a printed volume. Perhaps some
adjustment, not now obvious, to the proposed citation format
will reveal itself as a way of making the format usable for
printed reports even without a cross-index.11 At that
point, parallel citations no longer will be necessary to
make the new format both convenient and truly media-neutral.
In the meantime, though, the parallel citation suggestion
will make the new citation truly media-neutral in the near
term. It is a realistic way to ensure that the new citation
system is a benefit, not a punishment.
16. The cost of compliance with the ABA's recommended
system will be small for litigants, including the Department
of Justice. The information that the citation comprises
will be easily found in any copy of an opinion a court
issues, and its arrangement is straightforward. The
retraining required for attorneys, secretaries, and
paralegals will be minimal. The Department of Justice
commits promptly to implement and promote the proposed
citation system if it is adopted, and will take every
opportunity to employ it in other fora so that it may become
truly universal.
17. The burden of facilitating the proposed citation
system would fall on the courts themselves, since they would
be responsible for numbering paragraphs and assigning
sequential opinion numbers. Were opinions still produced on
typewriters, paragraph numbering could be a source of delay
and aggravation. With word processing software, however,
paragraphs can be numbered automatically, either while the
document is being typed (as this one was) or after it is
completed. Both Canada12 and South Dakota13 seem to have
employed paragraph numbering without significant expense.
Sequential opinion numbers might appear more challenging,
particularly in multi-division districts. As the ABA Report
notes, though, a simple computer hookup should accomplish
this task inexpensively.14 While these burdens are real,
they must be weighed against the benefits the courts too
will enjoy as users of case law materials that will be
disseminated more broadly, swiftly, and inexpensively.
18. If any party is likely to lose more than it gains
from the adoption of a media-neutral citation system, it is
the producers of products the current system favors. It is
axiomatic that the elimination of barriers to competition in
any market makes the incumbent firms worse off as consumers
exercise their newfound options to choose. But the nature
of competition is such that even those incumbents can thrive
in the new market if they choose to adapt and produce
products and services that consumers want. Particularly
since the ABA's parallel-citation provision creates a
transitional period in which publishers of printed reports
can decide how best to configure their products in a market
which is no longer skewed in their favor, the proposed ABA
citation system does them no injustice.
19. The Department of Justice urges the Judicial
Conference to adopt and implement the ABA's proposed
citation system. This system will enable more firms to
develop products and services to answer the demands of case
law users for timeliness, ease of use, reliability, and low
cost. These benefits in turn will make the judicial system
more efficient and access to justice more affordable for
all.
FOOTNOTES
1 American Bar Association Special Committee on Citation
Issues, Report concerning recommendation to ABA House of
Delegates, May 23, 1996 (hereinafter "ABA Report"), 16.
2 ABA Report at 15.
3 Those exceptions are when the case is not published in
West's system, either because it is too recent or because
West has decided not to publish it. In the former instance,
the current system allows citation to on-line services such
as Westlaw and Lexis, and reporter services such as BNA's
United States Law Week. The latter instance opens the way
for citations to specialized reporters such as the United
States Patent Quarterly and BNA's Trade Cases. These
services, however, are not comprehensive citation
alternatives to the West system.
4 See United States v. The Thomson Corp. & West Publishing
Co., Civ. Action No. 96-1415 (PLF) (D.D.C., consent decree
entered March 7, 1997) (resolving competitive concerns
raised by West's acquisition by The Thomson Corporation).
5 Matthew Bender & Co. and HyperLaw, Inc. v. West
Publishing Co., No. 94 Civ. 0589 (JSM) (S.D.N.Y. November
22, 1996)(bench ruling), appeal withdrawn, No. 96-9711 (2d
Cir., March 4, 1997). [HyperLaw Note: Judge Marting has
since recertified his decision for appeal]
6 Oasis Publishing Co. v. West Publishing Co., No. 96-2887
(8th Cir., oral argument held March 10, 1997).
7 See ABA Report at 48.
8 West's product offers case law back to 1942, whereas the
competitor's product provides case law only back to the
1970s. But for that difference, it is likely that the price
of West's product would have decreased even further in
response to the competition engendered by the adoption of
the new citation system.
9 ABA Resolution, 1.D.10While the proposed citation
system, absent the parallel citation, is in theory media-
neutral, as to case reporters published under the existing
citation system, its effect is different. For example,
without a parallel citation, the new citation system would
offer little help in finding a case in the Federal Reporter,
3d Series.
11Somewhat more difficult to envision are the possibilities
that print publishers of comprehensive case reports will be
able to adapt their products to make a parallel citation
unnecessary, or that demand for print-medium case reports
will disappear entirely.
12See ABA Report at 47.
13See ABA Report at 49.
14See ABA Report, Appendix A, at 16.