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HyperLaw Comments Concerning Judicial Conference 1992 Electronic Citation System
April 9, 1992
Mr. L. Ralph Mecham
Director
Administrative Office of the United States Court
Washington, D.C. 20544
Dear Mr. Mecham:
Thank you for your letter of March 27, 1992, responding
to my letter of February 28, 1992, and for the copies of the
"Standard Citation to Electronic Opinions", Revised Draft Report,
dated October 17, 1991, prepared by the Library Program
Subcommittee of the United States Judicial Conference Committee
on Automation and Technology, and the earlier July 18, 1991,
Draft Report.
The "Standard Citation To Electronic Opinions" reports
represent a bold and highly significant initiative that could
result in fairer access to federal court opinions. Thus, the
reports involve important issues of public policy and social
equity.
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.
Circumstance and development in technology have
presented the federal courts with a historic opportunity to
remedy the past failure of the judiciary to sponsor a non-
proprietary citation scheme for decisions of the federal courts.
These new circumstances and developments are (1) the advent of
court sponsored electronic bulletin boards containing electronic
versions of decisions;(2) the electronic publication by on-line
legal research systems of decisions prior to their print
publication; and (3) the electronic publication by those services
of decisions that never receive print publication. Accordingly,
the federal courts were faced with the need to create a uniform
method to denote computer files containing electronic versions of
decisions, so as to minimize the probability of major confusion.
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 the 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.
Why do these services include pin-point citation?
Because, without pin-point citation, an electronic citation
would not be accepted by or used by most judges and lawyers, and
accordingly would not be commercially viable. This would be like
having a telephone directory, but leaving out the telephone
numbers.
The proposed official cite, without pin-point citation
would be of no use in citing to specific parts of the decision.
For example, a practitioner wishing to cite a "published" but yet
to be printed decisions still would be forced to utilize Westlaw
or Lexis, even if the practitioner had the official court
electronic version (most local court rules require pin-point
citation). We believe this is against the greater social good.
The official court electronic version should contain all of the
information necessary for a citation that will comply with local
court rules and the expectations of courts and practitioners.
Thus, nothing particularly practical is accomplished by this half-
way proposal - practitioners who download from the bulletin
boards will still need to pay for expensive subscriptions to
Lexis and Westlaw.1 The primary beneficiaries of the new
proposal will be Lexis and Westlaw - and there will be little
practical benefit to lawyers or society as a whole.
We assume that one problem was that the Subcommittee
was originally authorized to develop an electronic citation form:
in discharging its mission, it developed what amounts to the
first official citation system for federal court decisions which
would serve electronic and print publication. For the
Subcommittee to have reached any other conclusion would have been
an exercise in illogic, since, upon reflection, the only
difference between electronic and print publication is the
publication media. The information is the same; the need for
precise citation is the same; the need for permanence is the
same. Some, we suggest assumed the Subcommittee overstepped its
bounds - but, instead, it merely fully discharged its
obligations, and in so doing simultaneously provided a way to
democratize access and rights to federal court opinions. We hope
that the full Judicial Conference will recognize and support the
service performed by the Subcommittee.
This highly important proposal has received little
public discussion, notwithstanding the efforts by your office and
the publication of a notice last August in the Federal Register.
Based upon the responses your August solicitation, many were
unaware of the proposal.2 Indeed, based upon discussions at the
recent ABA Technology conference in Chicago, many interested
professors, lawyers, bar association committee members, court
personnel, and others still are not aware of this initiative.
In August, 1991, we were not aware of the proposal; at
the time, we had yet to publish a CD-ROM of United States Supreme
Court opinions and thus were not on a list of publishers, we were
not a part of a law school, and we did not see discussion of the
proposal in the general or legal press.
Accordingly, we ask that you provide these comments to
the Subcommittee -- as tardy as they may appear.
In the rest of this letter, first we will describe some
of the social and policy issues involved. We will then provide
further comments to the Revised Draft Response and will follow up
with some technical suggestions. Finally, we will request some
additional information and action, including a request to make
the final report public.
Policy Considerations
The social and economic import of the Subcommittee's
proposal is not immediately communicated by the title of the
proposal. This proposal has a significant impact upon the
equitable access by all levels of society to quality legal
representation. The issue is not a narrow technical computer or
clerk's issue bereft of wider implications.
The few opponents to this bold initiative have
misrepresented the Subcommittee's work as "an attempted solution
for a non-existent problem."3
Notwithstanding this self-serving view, there is a
problem as to the equitable access to research of taxpayer funded
decisions of the federal court. Thus, one needs to balance the
concerns of court administrators and those of historic publishers
against the benefits to the public, including the lawyers and
parties that appear before the courts.
The present situation as to access to federal court
decisions is that West Publishing Company has asserted a monopoly
in the citation system for opinions of all United States District
Courts and Courts of Appeals.4 Some believe this monopoly is
perpetuated by the acquiescence and even cooperation of the
federal courts.5
Establishing a public domain citation system will open
up the publication of citable federal decisions to all
publishers, will create competition in the market, and will
stimulate the publication of innovative print and electronic
compilations and treatises of federal law.6
Establishing a public domain citation system would mean
broader and fairer access to federal law at lower costs. Lawyers
for all litigants before the federal courts will be able to
afford electronic research -- a privilege today affordable only
to selected litigants. It is difficult to justify or rationalize
requiring low and middle income litigants to pay monopoly prices
for quality legal research of taxpayer funded decisions of the
federal courts.
Not only will widespread and reasonably priced product
be in the greater social interest, but, one might postulate that
the quality of the law practiced will increase if attorneys are
free from monopoly pricing for research. Rule 11 sanctions
against attorneys would not be based upon their clients'
inability to afford research of databases. Additionally, access
to the courts is in question: because of the increasing use of
Rule 11, the financial resources required to conduct computerized
research could be argued to be a barrier to the use of the
federal courts.
The widespread citation of "unreported" decisions,
available only on Westlaw and Lexis, exacerbates the situation,
in that only litigants who can afford expensive on-line research
have access to these databases.7 This is hardly equitable. Even
worse, each of these on-line services is attempting to effect a
private non-statutory copyright by asserting contractual
limitations prohibiting their users from republishing the
decisions, which are in fact public records.
Further Discussion of the Revised Draft Report
The Revised Draft Report, as compared to the earlier
report of July 31, 1991, shows that the subcommittee has provided
flexibility in two significant areas. The flexibility has the
unfortunate effect of perpetuating the monopoly pricing of
federal court opinions.
Pin-Point Citation. The requirement of pin-point
citation has been left to the discretion of the local
courts. Pin-point citation would mean that the citation
is not just to the decision, but to a page or paragraph
in the decision. For all practical purposes, a citation
that does not pin-point a precise location in a
decision will not be accepted by a court, is not
practical for legal researchers and is commercially not
viable.
Official Parallel Citation. The use of the electronic
citation as a permanent parallel citation has been left
to the discretion of the local court rules. The
Subcommittee concluded that "there is no need to
mandate a parallel electronic citation."
We question this last conclusion that is not
substantiated -- we believe the use of the parallel citation
should be mandated. Moreover, the Subcommittee has not properly
characterized the question. The question is not whether there is
a need for a "parallel electronic citation" -- but whether there
is a need for a "public domain official citation" equivalent to
the U.S Reports citation for United States Supreme Court
opinions. If so phrased, then the policy and social issues are
open for discussion and balancing against the status quo. The
need for an electronic filename standard has merely presented the
opportunity to eliminate conclusively the anomaly of the absence
of a public domain citation for the federal courts.
Now, let us balance the social and economic advantages
of a public domain citation system against the reasons indicated
for not now adopting such a system on a mandatory basis.
It would appear the expressed reasons for non-mandatory
use is that each of the courts has adopted technology to varying
degrees and that additionally the courts operate independently.
In particular, it is stated that the courts use different
bulletin board systems and different word processing systems.
The most significant burden articulated appears to be placing
page breaks or paragraph numbers in the text of the decision. We
do not believe that these reasons justify continued accommodation
of the existing monopoly at the expense of society.
The initial report, moreover, suggests that only two
computer systems are in current use -- and, recognizes that in
both cases so-called macros can be designed to automate the
process and ease the burden upon the clerks and administrators
responsible for preparing the final version for electronic and
hard copy promulgation. Were the courts to solicit assistance
from the various ABA computer committees, which include some very
sophisticated lawyer/computer experts, I am sure that volunteers
would gladly lend their pro bono assistance to the courts, under
your offices' direction, in accommodating the needs of the court
administrators so that the important social goals can be met.
Such assistance would be equivalent to the many substantive
comments and recommendations provided by ABA Committees over the
years as to court rules and procedures.
Rather than yield to the natural reluctance to change
(we assume urged on by benefactors of the monopoly), we would
suggest that the obstacles be resolved with pro bono assistance
of the bar who possess with the necessary expertise to support
the court system in meeting the greater social good. If funds
are needed to purchase equipment, we suggest requests for
additional funding before accepting "assistance" from private
publishers who may thereafter be accorded a quid pro quo. For
other sources of funds, the Administrative Office might determine
if federal agencies are presently purchasing from the private
sector files of federal opinions that are in the first instance
keyed-in by the federal courts.
Specific Technical Suggestions
Having provided these quite broad comments, we do have
a few specific comments on the final proposal.
Citation Format. The Subcommittee has wisely provided
a print equivalent to the alphanumeric computer file
name citation form, for example, 1991 FED App. 0322P
(5th Cir.) as the equivalent for 90A0322P.05. Further
changes are suggested for both human and computer
readability.
For human readability, the leading "0" should be
eliminated. Any computer program will be able to
properly insert the leading zero to create the computer
equivalent and vice versa.
For computer and human readability, FED and App. either
should be all upper or all lower case; i.e., Fed. App.
or FED. APP., with a period after FED. The lower case
version is recommended, since we believe it is easier
to scan visually, is more similar to existing citations
formats, and moreover is easier to type.
The space between "Fed." and "App." should be
eliminated. This is useful for computers since
computer indexing systems will index both the "Fed."
and "App." words, rather than the single phrase
"Fed.App.", thus the computerized index would be
smaller. More importantly, it is useful when searching
the databases to search for a single unique term. We
note here the variation of citation form for "F.
Supp." and "F.Supp", whereas "F.2d" is always closed.
These variations create problems in searching for
citations; it is best to standardize by eliminating the
blank space.
Page Breaks. The committee needs to address further
the issue of page break and citation format. First, we
suggest that the subcommittee recommend a standard
citation format for the pagination. For example, the
pin-point citation for page 6 of the foregoing opinion
could be cited as, for example:
1991 Fed.App. 322P, 6 (5th Cir.); or
1991 Fed.App. 322P, p.5 (5th Cir.)
The Subcommittee should mandate a standard page
identification header to appear at the beginning of
each electronic page. For example, the pin-point
citation should appear on the right (or left) margin at
the top of the page (screen) (please, not at the bottom
of the page). An even better scheme would be to
include the short form of the case name, as well at the
page cite. All of this could be automated.8
Non-ASCII Characters. There are certain characters
commonly used that are not part of the ASCII character
set: in particular, the [PARAGRAPH] and [SECTION] symbols. The
subcommittee should recommend the alphanumeric
equivalent such as Par., Sec., Secs., etc., for
incorporation in the ASCII file.9 We also recommend
that the subcommittee investigate using another ASCII
based document format other than "plain" ASCII -- for
example, SGML or the Rich Text Format (RTF) format,
which would maintain all text formatting information in
an ASCII format.
Graphic Images. The subcommittee should also suggest a
standard image formats for non-textual image
information such as charts and maps. Because of the
prevalence of fax machines, and the low cost of fax
boards, we suggest utilizing a standard fax format,
since the clerks could fax the graphics into the
court's bulletin board computer. At the present, a
single image standard would be problematic -- however,
were image formats generated by "mainstream" software
and hardware to be specified, then, users could rely
upon commercially available conversion software to view
the images. In any event, images should be captured and
stored and posted on the bulletin board now, whatever
format is used. Ultimately, the courts should adopt an
image standard adopted by the American National
Standards Institute.
Moreover, the subcommittee needs to adopt a file naming
convention for images associated with a particular
decision text file. The only place remaining in the
DOS field name would be to use one of the three
characters in the file extension to indicate a graphics
file. This would require adoption of a multiple-page
image format. Another possibility is to include the
name of the related graphics file in the text file and
for each court to have a sequential numbering scheme
for images. In this case, one could not identify the
decision filename from the image number, but the
decision file would include the image filenames,
preferably at the beginning or end of the decision.
Requested Action By the Administrative Office
It is our understanding that a final report has been
prepared, but that the report is not being publicly released. It
is not known, therefore, whether further flexibility may have
been afforded which would further vitiate the original bold,
comprehensive, and intelligent report. Moreover, as amply
discussed above, the proposal raises significant public policy
issues.
We therefore request that a copy of the final report be
released publicly, and be released directly to the
major legal newspapers and wire services.
Since the initial proposal was in the Federal Register,
it would seem appropriate that the final report be
published therein as well.
Finally, we wish to request that we be provided with
certain additional documents:
West Publishing Company communications. We have a copy
of the August 22, 1991, 13 page letter from Dwight D.
Opperman, President of West Publishing Company to the
Administrative Office. That letter refers to earlier
Opperman letters of March 2, 1991 ("a standard
electronic citation system 'is an attempted solution
for a non-existent problem'") and March 14, 1991. We
request copies of those letters. In addition, we
request copies of all other letters and memoranda from
Mr. Opperman, or any employee or representative of
West, to the Administrative Office, or which the
Administrative Office has in its files, which relate to
the proposals, and predecessors thereof.
Shepard's/McGraw-Hill. We have a copy of the
memorandum of Shepard's/McGraw Hill dated August 29,
1991 stating that "solutions should not be recommended
for non-existent problems". We wish to have copies of
other letters and memoranda from such company
pertaining to the proposals and predecessors thereof.
Transcript of September, 1991 hearing. We understand
there was a hearing in September, 1991. We request a
copy of the transcript and a copy of comment letters
submitted thereafter.
We also understand that the Eleventh Circuit has
declined to participate in the posting its decisions on a
bulletin board. We hope that they will reconsider the issues and
that the private bar in that Circuit will provide whatever
support is needed to make implementation universal.
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.
Sincerely,
Alan D. Sugarman
President and CEO
FOOTNOTES
_______________________________
1 Mead Data Central (Lexis), however, was very explicit in its
support of pin-point citation for the electronic citation format.
See page 5 of letter from David A. Berger, Mead Data Central, to
the Administrative Office of the United States Courts, dated
August 27, 1991 ("MDC strongly agrees with the Subcommittee's
recommendation that the proposed citation system provide for
pinpoint referencing...").
2 From a review of the 36 responses to the July 18, 1991,
report, there appears to be only one response from a member of
the private bar who regularly practices before the federal
courts. Most responses were from judges, clerks, librarians,
publishers, associations of the foregoing, and law professors.
Except for West Publishing Company and Shepherd's, other legal
publishers supported the report. All of the professors supported
the proposal. There was no response from any committee of the
American Bar Association. The only bar association submitting
comments was the Association for the Bar of the City of New York,
which strongly supported the July 18, 1991 report. Of those
opposing the report, most were judges and court administrators
who were concerned with administrative burdens - we note that few
of these mentioned benefits to the public, or even easing the
load of clerk's making photocopies of decisions.
3 See letters from West Publishing Company and
Shepherd's/McGraw Hill at page 10.
4 See West Publishing Co. v. Mead Data Central, Inc., 792 F.2d
1219 (8th Cir. 1986); Patterson & Joyce, Monopolizing the Law:
The Scope of Copyright Protection for Law Reports and Statutory
Compilations, 36 UCLA L.Rev. 719 (1989).
5 Whether the asserted monopoly will withstand a challenge
based upon Feist Publications, Inc. v. Rural Telephone Service
Company, Inc., No. 89-1909 (U.S. March 27, 1991) is besides the
point - the judiciary should take control of the situation and
create a public domain citation system, which is still needed for
so-called "unpublished" decisions.
6 It is worth noting that the case law of the national courts in
Japan, Germany, Switzerland, Spain, Italy, , Canada, and
Argentina, and the European Common Market are now available in CD-
ROM. With the exception of HyperLaw's United States Supreme Court
CD-ROM, there are no comprehensive CD-ROM's of federal case law -
only compilations of isolated decisions.
7 Even worse, consider an impoverished civil rights litigant
whose adversary cites numerous "unreported" decisions. The
federal courts should either enforce "unreported" decisions
prohibitions, or should require the party citing "unreported"
decisions to fund the cost of the adverse party to conduct
equivalent research on the proprietary databases. Even best, is
to adopt a mandatory public citation format which will result in
affordable CD-ROM's, as well as other print publications.
8 We believe that the most elegant and technically easiest-to-
implement pin-point citation scheme is to number each paragraph -
but that appears to be too great a change from tradition.
However, if some type of pin-point citation is not mandated, it
is possible that electronic publishers will adopt the paragraph
numbering scheme. It would be better, again, to adopt a standard
scheme.
We also observe that the reports indicate that the insertion of
page breaks can be automated - and, thus, we are not sure why
page breaks have not been mandated.
9 The committee should study mandatory requirements to include
ASCII codes (generated by macros) to indicate italics and other
fonts including superscripts for footnotes. For example,
to start italics, and casename . The
RTF equivalent would be {/it casename}. The WordPerfect version
would be [ITALC]casename[italc].