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February 20, 1997
MEMORANDUM TO ALL: CIRCUIT EXECUTIVES
FEDERAL PUBLIC/COMMUNITY DEFENDERS
DISTRICT COURT EXECUTIVES
CLERKS, UNITED STATES COURTS
SENIOR STAFF ATTORNEYS
CHIEF PREARGUMENT ATTORNEYS
CIRCUIT LIBRARIANS
SUBJECT: ABA Resolution on Citations (ACTION REQUESTED)
RESPONSE DUE DATE: March 14, 1997
In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution calls for courts to identify the citation on
each decision at the time the decision is made available to the
public. The ABA resolution is attached, and the full report of the
Committee is available from the Administrative Office (202/273-1543)
or through the J-Net (the judiciary's Intranet site) or Internet at
(http://www.abanet.org/citation/home.html).
At the suggestion of members of the Judicial Conference's
Executive Committee, the Committee on Automation and Technology is
seeking written public comments from judges, court personnel, the
bar, and the public as to:
(1) whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA
resolution; and,
(2) the costs and benefits such a decision would have on the
courts, the bar, and the public.
In addition, a public hearing will be held on Thursday, April 3,
beginning at 9 a.m. in the ceremonial courtroom of the U.S. District
Court for the District of Columbia, 3rd and Constitution Ave., N.W.,
Washington, D.C. to address issues (1) and (2) stated above. Judges
on the Policy and Programs Subcommittee of the Judicial Conference
Committee on Automation and Technology will preside at the hearing.
Anyone wishing to submit additional written comments may send
them via e-mail, fax, or mail to the following addresses:
Mail: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
cc:mail: citation AOHUB
Fax: (202) 273-1555
Submission of written comments is preferred in electronic form,
using cc:mail. Any attachments to e-mail messages should be in
WordPerfect 6.1 or earlier versions, or in ASCII. Alternatively,
comments may be submitted in printed form through mail or facsimile.
Written comments are due no later than Friday, March 14, 1997. All
comments received will be considered public information.
Anyone submitting written comments who also is interested in
testifying at the public hearing should submit a written request to
the above address no later than Friday, March 14, 1997. Since it is
expected that only a limited number of requests can be granted, the
request should set forth reasons why an oral presentation, in
addition to written comments, would be helpful to consideration of
these issues. The request should identify the persons who wish to
testify, the subjects to be addressed, the amount of time desired
(the maximum is 15 minutes), the organization represented (if
appropriate), phone number, and fax number. If possible, advance
copies of testimony should be submitted. The Subcommittee will select
representative witnesses to testify.
We ask that clerks of court post the attached notice of the
request for comments and the hearing in a location where members of
the bar who practice before the federal court are apt to see it.
Notice of the hearing is also being provided in the Federal Register
and through the American Bar Association.
If you have any questions about the opportunity to submit
comments or the public hearing, please contact Joan Countryman of the
Appellate Court and Circuit Administration Division at 202/273-1543.
Leonidas Ralph Mecham
Attachments: Notice of Opportunity to Comment and of Public Hearing
ABA Citation Resolution
* * *
cc: Committee on Automation and Technology
February 20, 1997
MEMORANDUM TO ALL UNITED STATES JUDGES
SUBJECT: ABA Resolution on Citations (ACTION REQUESTED)
RESPONSE DUE DATE: March 14, 1997
In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution calls for courts to identify the citation on
each decision at the time the decision is made available to the
public. The ABA resolution is attached, and the full report of the
Committee is available from the Administrative Office (202/273-1543)
or through the J-Net (the judiciary's Intranet site) or Internet at
(http://www.abanet.org/citation/home.html).
At the suggestion of members of the Judicial Conference's
Executive Committee, the Committee on Automation and Technology is
seeking written public comments from judges, court personnel, the
bar, and the public as to:
(1) whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA
resolution; and,
(2) the costs and benefits such a decision would have on the
courts, the bar, and the public.
The Committee on Automation and Technology has prepared the
brief survey of judges attached to this memorandum and asks that
judges complete the form and return it by March 14.
Anyone wishing to submit additional written comments may send
them via e-mail, fax, or mail to the following addresses:
Mail: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
cc:mail: citation AOHUB
Fax: (202) 273-1555
Submission of written comments is preferred in electronic form, using
cc:mail. Any attachments to e-mail messages should be in WordPerfect
6.1 or earlier versions, or in ASCII. Alternatively, comments may be
submitted in printed form through mail or facsimile. Written comments
are due no later than Friday, March 14, 1997. All comments received
will be considered public information.
In addition, a public hearing will be held on Thursday, April 3,
beginning at 9 a.m. in the ceremonial courtroom of the U.S. District
Court for the District of Columbia, 3rd and Constitution Ave., N.W.,
Washington, D.C. to address issues (1) and (2) stated above. Judges
on the Policy and Programs Subcommittee of the Judicial Conference
Committee on Automation and Technology will preside at the hearing.
Anyone submitting written comments who also is interested in
testifying at the public hearing should submit a written request to
the above address no later than Friday, March 14, 1997. Since it is
expected that only a limited number of requests can be granted, the
request should set forth reasons why an oral presentation, in
addition to written comments, would be helpful to consideration of
these issues. The request should identify the persons who wish to
testify, the subjects to be addressed, the amount of time desired
(the maximum is 15 minutes), phone number, and fax number. If
possible, advance copies of testimony should be submitted. The
Subcommittee will select representative witnesses to testify.
If you have any questions about the opportunity to submit
comments or the public hearing, please contact Joan Countryman of the
Appellate Court and Circuit Administration Division at 202/273-1543.
Leonidas Ralph Mecham
Attachments: Survey Form
ABA Citation Resolution
* * *
ABA RESOLUTION ON UNIVERSAL CITATION 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 require the use of the official
citation?
Permit it?
3. Should federal judges number the paragraphs in an 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) 273-1555
Mailing Address: Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Please return this form by March 14, 1997.
March 4, 1997
L. Ralph Mecham
c/o Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution, Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
RE: American Bar Association Resolution on Electronic Citations
Dear Mr. Mecham:
You have recently circulated a survey soliciting views on the
American Bar Association's ("ABA") resolution urging the adoption of
a uniform electronic citation format. In a letter to the ABA, the
Federal Appellate Clerks unanimously opposed the proposal as then
written. Unfortunately, the ABA made no changes in response to that
letter and adopted the resolution now before us.
The clerks did not oppose standard electronic citation formats
and the ABA does not explain why "blue book" electronic citation
format is not acceptable. Rather, the clerks' objection stems from
the increased administrative burden that would result from the new
format.
For example, the proposed format dispenses with the case number
as the identifier for the disposition and replaces it with a
"sequential" number. An opinion identifier which does not include the
actual case number of the appeal is, by itself, meaningless. A reader
who has only the sequential number will always have to take an
additional step to determine the case number before the file or
procedural history of the case can be accessed. In effect, reliance
on a sequential number to identify opinions requires use of a "key"
to translate the opinion number into a case number. This is
especially important now that the courts offer on-line access to
docket information and opinions.
Several questions about this translating key are not answered by
the ABA's resolution. Who will create and maintain the key? How will
researchers access it? How long will it have to be maintained for
future readers' use? If the ABA format is adopted, we believe that
the clerks of the circuit courts will be required to create and
maintain these keys, to provide the information to users through our
existing staffs and resources, and to maintain the keys forever.
Additionally, the use of a sequential number to identify
opinions complicates our internal operations. Each clerk's office
will have to create and maintain new databases to track this
information, and we will have to train deputies in their use. Please
note that the proposal seems to also apply to unpublished
dispositions. To comply with the ABA resolution all dispositions
would have to be sequentially numbered by court staff -- in order of
disposition.
Finally, it does not appear to me that the sequential identifier
is simpler to use than a case number identifier. Is 1977 DC Cir.
133U, for example, any easier to use or remember than the current
system based on case number, court and date of issuance? The
difference between the two forms of citation is simply not
significant enough to justify the loss of the important information
provided by a citation which includes the actual case number and the
date of issuance.
The D.C. Circuit is currently making due with reduced staff
allocations. In this environment, any suggestion for a change in
procedures which requires the expenditure of additional resources and
staff time must be carefully examined. A change of this scope should
only be implemented when a persuasive case can be made that the
change will improve the service we offer the bench, the bar, and the
public. It is not at all clear that this proposal will offer benefits
sufficient to outweigh the administrative costs.
I do not object at all to uniform electronic citation. My
objection is to a format that would require each Court to completely
change the way it dockets decisions or to set up a parallel docketing
system without sufficient justification for the new format.
As for numbering paragraphs in an opinion, I have no objection
so long as the need to insert the numbers does not create a
significant burden on the judiciary. Although I fear that the
numbering would have to be done in chambers, and would create
substantial headaches, I imagine that it might be feasible to
accomplish.
Sincerely,
Harry T. Edwards
Chief Judge
February 26, 1997
To: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
From: Stephen F. Williams
PARAGRAPH NUMBERING AND OTHER DEVICES FOR FACILITATING PIN
CITES
I strongly oppose adoption of a practice of numbering paragraphs
in judicial opinions. Few changes would more aptly symbolize and
advance the bureaucratization of the federal judiciary. The style
belongs to the civil law tradition and to decisions of the Federal
Communications commission, not to the common law.
The purpose of making possible pin citations in which no private
sector company has a copyright can be as well achieved by allowing or
requiring citation to pages of the slip opinions, identified by *s.
(That may require insertion of some computer symbol in the
computerized version of the slip opinion, but I don't see why that
should be a difficulty.)
SGU
TO: Appellate Court and Circuit Court Admin. Div., A.O. U.S. Courts
FROM: Norman H. Meyer, Jr., Clerk of Court, E. District of Virginia
RE: Comments on ABA Resolution on Citations
I have reviewed the proposed uniform citation system
contemplated by the ABA resolution, and I have a significant concern
regarding the logistics of implementing this system in a large
federal trial court such as the Eastern District of Virginia.
Each court using this system will have to sequentially number
"each decision at the time it is made available to the public." This
court, as is the case with most federal courts, has multiple
geographic divisions. We have four divisions spread across cities 200
miles apart with over twenty judicial officers, each issuing many
decisions and opinions on a regular basis. I am concerned about how
this court, and in particular my office, can effectively implement a
sequential numbering system with the judges.
If the proposed system is restricted to solely the "published"
opinions of the court, the problem exists but is probably manageable,
albeit with an additional layer of work for the court. In 1995 we had
182 opinions published in F.Supp., and in 1996 there were 143. The
problem becomes enormous, however, if the definition of opinions
includes the thousands of opinions we issue that are "unpublished"
The daily management of the checking and assigning of sequential
numbers on a district-wide basis is an additional workload burden on
judicial staff and the Clerk's Office that I do not see an easy
solution to at this time. Ultimately an automated system may be
possible, but I do not see one available now. In any case, what would
be the real purpose or advantage of including these opinions, most of
which are very brief and only of value to their cases, in a national
citation system?
I have checked with the ABA, and in particular with J.D. Fleming
who chaired the ABA special committee on Citation Issues, to see if
the intent of the resolution and proposed system is to include
unpublished trial court opinions. Mr. Fleming informed me that it was
his opinion that the system contemplates having courts decide this
question locally, numbering unpublished opinions in the system
voluntarily. He stated that those courts which have already adopted
the system are numbering all opinions in a common numbering sequence,
adding a suffix of "(U)" to the citation to denote those not intended
for precedential purposes. Thus if the system is adopted, we may be
able to minimize the problem I raise by local choice -- I certainly
hope so and advocate this be explicitly spelled out. My clear
preference, though, is to have the system, if adopted, clearly
exclude trial court unpublished opinions.
Thank you for this opportunity to comment on the ABA resolution.
If there is any question about this message, please do not
hesitate to contact me via e-mail or by my phone at 703-299-2177 in
Alexandria.
Norman Meyer
Clerk of Court
E. District of Virginia
March 5, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Attention: Ms. Joan Countryman
Dear Ms. Countryman:
I am strongly opposed to adopting the ABA's official citation
form for several reasons. On a philosophical level, efforts to
homogenize the federal courts of this nation are shortsighted.
Diversity among our federal courts encourages experimentation and
progress and is one of the reasons the federal judiciary has remained
so dynamic.
Second, it is highly inappropriate for a group outside the
judicial branch to suggest that judges conform their work to certain
standards. To my knowledge, no federal judge is required to follow
any particular form for his or her opinions. Some judges value
brevity; some use literary flourishes; some include many footnotes,
others use few; some follow Blue Book format, others do not; some
only cite to the official source, and others include parallel cites.
To mandate that judicial opinions conform to a specific format, such
as numbering every paragraph and including parallel cites to
electronic publications, seriously invades judicial independence.
On a practical level, asking the district courts to number
sequentially each "published" opinion will impose a significant
burden on both chambers and clerk's office staff. In larger, multi-
division courts, such as the Eastern District of Virginia, some
method for coordinating this sequential numbering will be necessary
assuming that decisions are reported by district as they presently
are. Will my secretary have to call a coordinator clerk who keeps
track of each opinion issued by all judges in this district or dial
into a special sequencing program to get a number for each opinion I
publish before I send it out? Without intra-district networking, such
coordination is unrealistic and unreliable. And how do my law clerks
get these "parallel electronic cites"? Will Westlaw include them or
are we back to some kind of Shepardizing?
I understand that part of the impetus behind the ABA proposal is
a concern about the proprietary way in which private, profit-making
ventures, such as West Publishing Company, copyright their
publication of our opinions. The belief is that our opinions belong
to the public and should be readily available to all persons without
having to pay fees to private vendors of that information. The
traditionally invaluable service these private publishers have
provided has been to organize and catalog judicial opinions into a
reliable and accessible format. The Internet, of course, seriously
challenges the old way of doing things and opens up the possibility
that if the courts would do what private enterprise has been doing,
then everyone in the world could have immediate, inexpensive access
to judicial opinions.
However, given the trend towards out sourcing governmental
functions (of which the commercial publication of judicial opinions
is a fine example) and significant budgetary limits on the federal
judiciary, the ABA proposal presents an unnecessary financial burden.
To implement this proposal would require either some allocation of
scarce personnel resources or installation of technology which we do
not have at this time and which is expensive. Although the concerns
surrounding the ABA proposal have merit, I believe the solutions may
lie elsewhere. Therefore, I recommend that the ABA shift its focus
from the judiciary and work for changes within the private sector to
accomplish the goal of inexpensive, universal access to judicial
opinions.
Very truly yours,
Leonie M. Brinkema
United States District Judge
March 13, 1997
Ms. Joan Countryman
Appellate Court and Circuit
Administration Division
Attention: ABA Citation Resolution
Suite 4-512
Administrative Office of the
United States Courts
Washington, DC 20544
Dear Ms. Countryman:
I second Judge Brinkema's letter to you of March 5, 1997,
regarding the ABA's official citation form.
Very truly yours,
James C. Cacheris
March 10, 1997
Appellate Court and
Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Dear Ms. Countryman:
My initial response to the questionnaire concerning the ABA
Resolution on Citations was simply to answer "no" to each of the
questions posed and further to note that "[T]hese proposals are
unnecessary, fail any cost/benefit analysis and are likely
unenforceable. The ABA should stay out of interfering with judge's
work."
To that, I wish to add that I support the views expressed by
Judge Brinkema in her thoughtful letter of March 5, 1997. As a matter
of principle, neither the ABA nor any other external organization has
any business setting standards for judicial opinions, however
innocuous the proposed standards may appear.
Sincerely
T.S. Ellis, III
United States District Judge
Michael R. Seidl, Ph.D. J.D.
851 North Van Dorn Street
Alexandria, VA 22304
mseidl@nicom.com
Appellate Court and Circuit Administrative Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Dear Sir or Madam:
I am pleased to have the opportunity to comment on the ABA's
Citation Resolution. I am a recent law school graduate, and I hold a
Ph.D. in English literature; I think this gives me a useful
interdisciplinary view on the importance of citations. Also, I
presently clerk for a Federal judge, which I believe gives me a
practical view on citations in action. The remarks that follow are
entirely my own, and in no way reflect the opinions of any
organization or of anyone but myself.
I approve, in premise, of the proposed modifications to citation
format. Establishing a universal "generic" citation form (that is not
the property of West or some other publishing organization) is an
important step toward returning law to the public domain; one's
ability to create an appropriately-cited legal document should not
depend upon one's financial ability to access West's publications.
Furthermore, the economy of style in the proposed modifications is a
pleasant correction to the present complexity generated by the need
to cite many different case reporters. However, any adjustment to
the citation format is incomplete without more careful consideration
of the purpose and deployment of citations. Just changing the
citation format is, if you will allow me the simile, like repainting
an old car: it may look better, but you will not get any additional
mileage out of the work.
The primary purpose of a citation is to allow one to quickly and
easily find the cited material so that it can be checked for
denotative accuracy and analyzed, in context, to determine its
connotative accuracy. With present electronic technology, it is
possible to file an electronic brief or other judicial document with
hypertext links that allow one to jump from a citation to the
material cited. In such a situation, the importance of the citation
form declines because, ultimately, it is not the form of the citation
that matters but its ability to lead us to the cited material: any
accurate form suffices.
In short, I believe that any revision to citation format should
be less concerned with a cosmetic change in format -- a change that,
by definition, will be only a stop-gap on the road to more user-
friendly electronic court documents -- and more concerned with
developing:
1) Parameters for the filing of electronic judicial documents
with hypertext/direct links to the cited material; and
2) Provisions for developing a public database to which such
links can be made without the current cost of electronic access
through Lexis or Westlaw.
Absent such forward-looking changes, any change to citation form
is likely to require additional modifications in the near future, and
citation forms are -- for obvious reasons -- not things that should
be subject to frequent revision.
Thank you for your consideration.
Sincerely,
Michael R. Seidl
Charles R. Fulbruge III
Clerk
United States Court of Appeals
For the Fifth Circuit
March 7, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
In August 1996, the American Bar Association (ABA) approved a
resolution made by its Special Committee on Citation Issues calling
for state and federal courts to develop a standard citation system
and recommending a format that could be used by state and federal
courts. That resolution would require courts to identify the citation
on each decision at the time the decision is made available to the
public. The standard form of citation, for a decision in a federal
court of appeals, should include the year of the decision, the court,
the decision number, the paragraph number where the material referred
to is located and the parallel citation.
This office opposes the ABA resolution. We see no need to
introduce a new sequential decision number into the operations of
this court. To create the ABA proposed "standard" form of citation
would require additional work at several levels. Initially, we would
have to:
1. Devise and coordinate with our judges a means for assigning
the sequential decision numbers;
2. Create or modify existing AIMS events for the decision number
to be included in the AIMS database;
3. Devise a means of answering inquiries from the public seeking
information on the new decision number assigned;
4. Create and maintain a permanent cross reference between the
docket number and the opinion number;
5. Train employees to answer inquiries from the Court and the
bar on the newly established procedures.
Several of the above tasks would also have to be preformed in a
daily basis. We estimate an opinion clerk would have to spend an
additional five minutes per opinion to assign a decision number and
docket the appropriate information in AIMS. We also estimate another
five minutes per opinion for the authoring judge's staff to number
the paragraphs of the opinions. Our biggest concern is the time
clerk's office personnel will spend answering inquiries from the
public regarding gaps in decision numbers, if for example an opinion
is withdrawn, requesting citations, and requesting the full case
information when all they have available is a citation.
Now that virtually all the circuit courts' opinions are
available on the Internet, there is a great public access to the
court's decisions. At least in this court, our opinions are
identifiable by case number, court and date of decision,, e.g. Smith
v. Jones, No. 97-10113 (5th Cir. Mar. 7, 1997). We question why we
would want to invest time and money in the ABA proposed form, when it
imposes a burden on this court with no perceptible benefit.
!NR
Sincerely,
Charles R. Fulbruge III
Author : Gretchen Thiberville at 5BC-LAE-Neworlean
Date : 3/7/97 11:29 AM
Priority: Normal
Receipt : Requested
TO : citation at AO-OCPPO
Subject : Re: ARA Resolution on Citations
Message Contents
I would like to respond to the February 20, 1997 Memorandum
concerning the ABA Resolution on new citation forms.
As a law clerk in the federal judiciary system for almost nine
years, I feel I have some expertise on this issue. I cannot
wholeheartedly endorse the concept of an "official citation" beyond
those currently in use. A system that is not in any way dependent on
a judge's own evaluation of which opinions have precedential value is
not a good one. However, because of the increasing use of electronic
case reporting for various reasons, I suppose such citation changes,
as well as a departure from dependency on the West citation system,
is ultimately inevitable. Nevertheless, I am not in favor of the
sequential numbering system used in the proposed citation form.
From the vantage point of the Bankruptcy Court and Clerk's
Office, this would be a very difficult numbering system to implement
and to track. Not all opinions are entitled as such, yet an "Order
and Reasons" might also be worthy of receiving an "official
citation". On the other hand, if every order or minute entry which
the Court issues is to receive a citation, then the citation numbers
could get quite high. Another foreseeable problem is logistical in
that the sequence of numbers would have to be closely tracked to make
sure each opinion, order, etc. that is worthy of citation receives a
different number. In our Court, several case administrators docket
pleadings for both judges and could end up unknowingly numbering
different opinions with the same number. Additionally, I think the
proposal to have the Court number each paragraph in an opinion is
cumbersome and unnecessary since the pages are already numbered and
this can be used for reference.
I believe the citation system used for unpublished decisions,
and which is in use as the "official citation" for many states
courts, is preferable for the federal courts. This would mean citing
a decision using the case number, the court name and the date of the
decision. This method uses information already recorded for each
decision and does not depend on an arbitrary numbering system.
I hope these comments assist in the gathering of information
concerning this proposal.
!NR
Sincerely yours,
Gretchen Thiberville
Law Clerk to
Judge Thomas M. Brahney, III
United States Bankruptcy court
Eastern District of Louisiana
!EN
!NR
March 6, 1997
TO: citation at AO-OCPPO at 5BC-LAE-Neworleans
Subject: ABA RESOLUTION ON CITATIONS
Message Contents
!EN
As a law clerk in the federal judicial system for six years, I
have some expertise on case citations, and would like to comment on
the ABA resolution on citations.
I disagree with the citation form proposed and approved by the
ABA.
Consecutively numbering the opinions from each district would be
very cumbersome and difficult. From the viewpoint of a bankruptcy
judge, it would be difficult to determine which orders get a number.
Some minute entries/orders are short, and may cite to only one case.
Would these be included within a consecutive numbering system? If so,
the consecutive numbers would end up being quite large. This would
lead to an increased likelihood of typographical errors in citations.
I think that long term, some type of citation system that is not
dependent on the West system is inevitable. I don't really like this
because some cases are not worthy of precedential value, and the
present system where the judge sends off the decisions that the judge
believes are appropriate for publication is a good one.
However, assuming that change is inevitable, the best way to do
that is to use the form, or a variation thereof, of the system
presently used for unpublished decisions. Citing the case name,
number, and date of the opinion would do a better job than the system
proposed by the ABA because it is less prone to typographical errors,
and does not require some arbitrary numbering system by the Clerks'
offices.
It would also be cumbersome to have the court number paragraphs
in an opinion, when the publisher can use the page numbers of the
court's opinion.
I have shown these comments to Judge Brown. He advised me to let
you know that he agrees with them.
I hope this is of assistance to you in your information
gathering phase.
!NR
Sincerely,
R. MARLA HAMILTON
LAW CLERK TO
JUDGE JERRY A. BROWN
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF
LOUISIANA
!EN
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.O. Box 1439
San Antonio, Texas 78298
DATE:
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 marvelled 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, I think they need
to be, but some of my colleagues on the district court might well
disagree, especially given that magistrate judge decisions are
normally 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 "flow" 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 (I 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 myriads 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. 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. I 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. I hope that the Administrative Office continues
to closely examine and pursue the issue.
February 28, 1997
TO: Appellate Court and Circuit Administration Division
Administrative Office of the U.S. Courts
ATTN.: ABA Citation Resolution
FROM: Nancy Doherty
SUBJECT: ABA RESOLUTION ON CITATIONS
Thank you for the opportunity to respond to the ABA resolution
on citations. I have advised several judges of my court that I do not
believe the courts can implement the ABA resolution without adding a
great deal of work to clerk's offices. As most of the judiciary
realizes, this system also raises a number of philosophical and
quality control issues.
1. Workload Issues
In addition to being the official repository for case
information, the clerk's office would become responsible for
assigning numbers to opinions and storing them in an electronic
format that is readily accessible to the public. Also, it will be the
responsibility of the clerk's office to ensure that opinions are in
the appropriate format and that paragraph numbers are embedded
properly. In other words, the clerk's office would take on an
entirely new "editorial" role. This new work would come at a time
when our office is under increasing pressure to produce more and
provide better and faster service with fewer resources.
It does not appear to me that the courts are prepared to take
over a service that historically has been provided in the private
sector with few problems. Until such time that a system has been
designed for federal courts to use to affix citation numbers, embed
paragraph numbers and archive opinions and can be easily implemented
with existing staff, I am adamantly opposed to our office taking on
this additional responsibility. At the present time we need better
systems to support many of our core responsibilities (e.g. electronic
filing). Diverting scarce systems resources to develop a new
information system for opinions would be counterproductive and
costly.
I assume numbering of paragraphs would present extra work for
judges' staffs. Depending on when a judge makes the determination
about publishing, it's possible that all opinions would require
paragraph numbering. At this time, my understanding is that the
resolution is only referring to published opinions. However, should
this idea merely be a first step toward giving all district court
opinions a citation number and making them readily available to the
public, there are serious implications for the judiciary. If district
judges are called upon to write ALL opinions for publication, the
time it takes to write opinions would increase. And more importantly,
if all opinions are "published" electronically, opinions might lose
their persuasive value.
2. Quality Control Issues
If and when such a system is implemented, it could lead to
issues of quality control. Although I am assuming that these issues
have been discussed at great length by those who are far more
knowledgeable than I am, I mention them for informational purposes
only. For example, if a public domain citation system is adopted as
proposed, opinions in electronic format will be easy and inexpensive
to obtain. As a result, a new cottage industry may emerge. It is
certainly possible that not all publishers will adhere to the quality
standards we have come to expect from official reporters.
Furthermore, electronic information is more easily manipulated than a
fixed medium, so unacceptable variances in the opinions may develop.
Federal district clerk's offices, as official repositories, will
necessarily be involved in verifying information if disputes arise
over contents of opinions.
I know there is a great deal of interest in getting opinions
electronically rather than through a book publisher. I have been
asked on several occasions to provide this kind of information. At
this time we only provide it in hard copy and charge $.50/page. We
expect many changes because of the advances in electronic publishing.
However, I think the extra work should be borne by vendors and not by
the courts.
c: Chief Judge Jerry Buchmeyer
March 3, 1997
Hon. J. Owen Forrester, Chairman
Automation & Technology Committee
Judicial Conference of the United States
75 Spring Street, S.W.
Room 2367
Atlanta, GA 30303-3361
Dear Judge Forrester:
I am enclosing herewith, with my enthusiastic endorsement, Judge
Stephen Williams's response to the ABA resolution on universal
citation. I agree with Judge Williams 100 percent that the numbering
of paragraphs in judicial opinions would be a mistake. It would
disfigure and bureaucratize the opinion-writing process, and, as he
explains, is quite unnecessary. I hope that you will give the most
serious consideration to his suggestion.
I also wish to raise with you the question of the NECESSITY of a
universal citation form, as anyone with the West citation can readily
locate the opinion on-line if he prefers that to the book version.
Sincerely,
Richard A. Posner
Enclosure
CC: Appellate Court and Circuit
Administration Division
February 28, 1997
Ms. Joan Countryman
Appellate Court and Circuit Administration Division
Attn: ABA Citation Resolution
Ste. 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
RE: Comments concerning ABA Resolution in Universal Citation System
Dear Ms. Countryman:
In responding to the Administrative Office February 20th
memorandum this writer has searched in vain for any prior
communication evidencing a "problem" that needed "fixing" relative to
the present citation system.
A cursory review of the Federal Supplements reveals there are no
standards concerning what opinions are published or unpublished.
Apparently the law publishers print everything submitted. This should
not be. Case after case in the Federal Supplements concern the fact
intensive granting or denying of dispositive motions carrying no new
legal principle in application or genesis. Thus, the 'data bases' are
cluttered with unimportant decisions becoming elevated to 'head
notes' for citation which give no precision in law application
whatever. This 'Law of headnotes' does nothing to advance legal
scholarship, except help build strings of citations.
To require additional citations beyond the case number with the
numbering of each paragraph is an onerous burden upon court staff
with no measurable benefit to the court and benefit only to the 'date
base' private publishers. This cost shifting from the private to the
public sector is clearly unwarranted.
Sincerely,
Robert Holmes Bell
United States District Judge
I recognize the need for a consistent citation system which is
compatible with electronic storage. Nevertheless, I am opposed to the
ABA proposals for the following reasons:
1. Numbering paragraphs in opinions would be both cumbersome for
the writer and bothersome to the reader.
2. Numbered paragraphs could also lead to confusion where an
opinion also enumerates elements or factors.
3. Having already memorized the Bluebook, judges, clerks and
lawyers will not be inclined to learn and use yet another citation
system.
I believe that many of the ABA's concerns could be ameliorated
if West Publishing and other "official reporters" did not attempt to
assert copyright protection over the pagination of published
opinions.
ERIC S. RICHARDS
Judicial Clerk to the
Hon. James D. Gregg
United States Bankruptcy Court
for the Western District
of Michigan
Gerald R. Ford Federal Building
P.O. Box 3310
Grand Rapids, MI 49501
Telephone: (616) 456-2052
Telefacsimile: (616) 456-2425
"erichards@ck6.uscourts.gov"
United States Court of Appeals
For the Eighth Circuit
U.S. Court & Custom House
114 Market Street
St. Louis, MO 63101
Michael E. Gans
Clerk of the Court
March 14, 1997
Mr. John Hehman
Chief, Appellate Court and
Circuit Administration Division
ATTN: ABA Citation Resolution
Administrative Office of the
United States Courts
Washington, D.C. 20544
Re: ABA Citation Resolution
!EN
Dear Mr. Hehman:
A number of the federal circuit clerks have asked me, as chair
of the Appellate Court Clerk's Advisory Committee, to submit the
following comments on the ABA resolution on case citation for
consideration by the Policy and Programs Subcommittee of the Judicial
Conference Committee on Automation and Technology. I should note that
while the positions expressed in this letter represent the views of
the majority of the circuit court clerks, some clerks were not able
to sign on to the letter because their courts were still discussing
the resolution at the time this letter was prepared.
In summary, we dispute the need for the alternative case
citation system proposed in the ABA's resolution. We believe "Blue
Book" citation of unpublished opinions (by case number, court and
date) is still the most effective method for citing electronically
reported opinions. We strongly oppose the creation of an opinion
citation system which identifies opinions by anything other than the
case number assigned by the issuing court. The remainder of this
letter will outline the reasons for our positions and note some other
concerns we have been regarding the ABA resolution.
We wish to begin our discussion by noting that we have strongly
supported the electronic dissemination of federal appellate court
opinions. The federal courts of appeals have taken the lead in the
development of electronic bulletin board systems for the distribution
of opinions and case-related information. Currently, lawyers and
researchers throughout the nation use these systems to retrieve
circuit court opinions. Additionally, we have actively participated
with a consortium of law schools around the country to make the
courts' opinions accessible through the Internet. This project has
made opinions available without charge to literally millions of
computer users around the world. As a result of these two efforts,
federal appellate court opinions are more widely available than ever
before. So we approach the ABA resolution with a wealth of practical
experience as to how electronic distribution systems work and how
these cases are cited.
We would also like to note that the issue of an alternative
citation system for opinions was addressed by the appellate court
clerks and the Judicial Conference of the United States several years
ago. At that time the clerks unanimously recommended rejection of a
proposal very similar to the ABA's current resolution. The Judicial
Conference eventually voted to reject the proposal. We also offered
comments last April to the ABA committee which was working on the
current resolution; in those comments we strongly opposed the
resolution.
Our experience since we first addressed this issue has confirmed
our belief that an alternative citation system based on sequential
opinion number is not needed in the federal courts. Neither attorneys
practicing in our courts nor judges researching and writing opinions
have expressed the view that the current system of citation based on
case number, date of issuance and court hinders their use or citation
of federal court opinions. Likewise, no judge or attorney has ever
expressed to any of us any desire to adopt a citation system such as
the one proposed in the ABA resolution. In our opinion, the proposal
to create a citation system based on sequential opinion numbers is a
solution in search of a problem.
Assuming for the sake of argument that a new system of citing
opinions is required because of the widespread use of electronic case
reports, it has always been our position that the system must be
based on the case number assigned by the issuing court. We take this
position for several reasons.
First, the issuing court case number is the key to the history
of the case, its current status and all of the documents in the
appeal. An opinion identifier which does not include the actual case
number of the appeals is, by itself meaningless. A reader who has
only the sequential number will always have to take an additional
step to determine the case number before the file or procedural
history of the case can be accessed. In effect, reliance on a
sequential number to identify opinions requires use of a "key" to
translate the opinion number into a case number. This is especially
important now that the courts offer on-line access to docket
information. Future plans to create on-line access to the actual
documents in the case file will make the case number even more
critical to researchers.
Several key questions about this translating key are not
answered by the ABA's resolution. Who will create and maintain the
key? How will researchers access it? How long will it have to be
maintained for future readers' use? We think the answers to these
questions are that the clerks of the circuit courts will be required
to create and maintain these keys, that we will have to provide the
information to users through our existing staffs and resources, and
that we will have to maintain the keys forever.
All of the circuits are currently making do with reduced staff
allocations. Many of us are struggling to maintain the high level of
service we provide the bar and the public. In this environment, any
suggestion for a change in procedures which requires the expenditure
of additional resources and staff time must be carefully examined. A
change should only be implemented when a persuasive case can be made
that the change will improve the service we offer the bench, the bar,
and the public. We believe that the creation of a case citation
system based on a sequential opinion number does not meet this test.
Second, the use of a sequential number to identify opinions
complicates our internal operations. Each clerk's office will have to
create and maintain new databases to track this information, and we
will have to train deputies in their use. Additionally, some courts
have opinion issuance procedures and agreements with printing vendors
which would cause confusion with respect to the date of issuance if a
sequential numbering system is adopted. For example the Fifth Circuit
designates certain opinions for issuance through their printer only,
while others issue in manuscript form. The opinions issued through
the printer are actually released some time after they are received
in the clerk's office due to their printing schedule and, as a
result, their numbering would fall outside the numbering sequence
anticipated by the ABA resolution.
Third, we believe the sequential identifier is no simpler to use
than a case number identifier. For example, nearly all of the
circuits issue more than a thousand opinions a year. Is 1997 8th Cir.
1234U any easier to use or remember than the current system based on
case number, court and date of issuance? The difference between the
two forms of citation is simply not significant enough to justify the
loss of the important information provided by a citation which
includes the actual case number and the date of issuance.
Finally, the actual date of issuance of information contained in
the current form of citation is important to many users, as it
provides direct access to information on our opinion bulletin board
and Internet sites, nearly all of which organize opinion directories
by date of issuance.
We hope the Subcommittee will carefully examine the use of a
citation system based on sequential opinion identifiers which are
unrelated to case number. We would be happy to provide additional
information about its impact on our operations or answer any specific
questions the Subcommittee might have.
We also have concerns with two other provisions of the ABA
resolution.
First we object to the provision that the courts should add
paragraph numbers to the opinions. We believe this would entail
substantial additional work for chambers and for clerks' offices. In
our opinion the court should be responsible for the text of the
opinion and initial page numbering, and all other services, including
paragraph numbering, should be left to the marketplace.
Second, the resolution does away with the current practice of
providing a parallel pinpoint cite to the Federal Reporter citation.
For the foreseeable future, the Federal Reporter will continue to be
a significant research tool for judges, lawyers, prisoners and other
pro se litigants. Eliminating the parallel pinpoint cite leaves many
readers either greatly inconvenienced or at a significant
disadvantage, while including it requires little additional effort on
the part of the writer. Although the ABA may well be correct in its
prediction that primary reliance for case citation will eventually
shift to electronic case reports, the clerks believe this day is far
enough off that parallel pinpoint cites must still be required.
When we forwarded our comments to the ABA's Special Committee on
Citation Issues last April, we invited the Committee to open a
dialogue with us on issues related to opinion issuance and citation.
We regret that the Committee did not see fit to respond to our letter
or address our concerns. As the court officers charged with the
responsibility for issuance of federal appellate court opinions and
maintenance of the courts' official records, the clerks of court have
a vital interest in this topic and are in a pivotal position to help
shape opinion and practice. We hope that the Committee on Automation
and Technology will give serious consideration to the concerns
expressed in this letter.
Please let me know if our group can be of any further assistance
to you or the Committee.
Sincerely,
Michael E. Gans
Chair, Appellate Court
Clerks Advisory Committee
cc: All Circuit Court Clerks
March 12, 1997
Appellate Court & Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
1 Columbus Circle, N.E.
Washington, DC 20544
At a meeting of the U.S. District Court Judges in the District
of Minnesota on February 26, 1997, the Court considered carefully the
recommendations of the Special Committee on Citation Issues of the
American Bar Association that state and federal courts develop a
standard citation system and uniform format.
After discussing this matter, it was a consensus of the Judges
that the federal court should not adopt the form of official citation
for court decisions recommended by the ABA resolution. Further, it
was a consensus of the Judges that the Clerk of Court should
communicate their position to the appropriate individual or body.
Sincerely,
Francis E. Dosal, Clerk
U.S. District Court
St. Paul, Minnesota
cc: U.S. District Judges
March 14, 1997
SENT VIA FACSIMILE AND U.S. MAIL
Appellate Court and Circuit
Administration Division
Attn: ABA Citation Resolution
Administrative Office of the
United States Courts
Washington, D.C. 20544
Dear Committee Members:
The Ninth Circuit Advisory Committee on Rules of Practice and
Internal Operating Procedures requests consideration of the following
comment on the American Bar Association's Resolution on Citations.
Although the concept of an alternate uniform system for citation
of opinions is desirable, we have concerns about some aspects of the
ABA's proposal. Specifically, requiring courts to assign a unique
sequential number for each decision, and then assign numbers to the
paragraphs within each decision, places too heavy a burden on courts
for too little benefit. We believe that the existing document numbers
assigned to cases and the existing page numbers, together with the
date of the decision, is sufficient reference. We therefore believe
that the system proposed in the "Blue Book," paragraph 10.8.1, is
superior to that proposed by the ABA Resolution.
Very truly yours,
Peter W. Davis
Advisory Committee on Rules of
Practice and Internal Operating
Procedure of the United States
Court of Appeals for the Ninth
Circuit
March 10, 1997
Mr. Clarence A. Lee, Jr.,
Associate Director
Administrative Offices of the
United States Courts
Washington, D.C. 20544
Re: ABA Resolution on Citations
Dear Mr. Lee:
The main problem that I have with the ABA Resolution on
Citations is the difficulty of numbering the paragraphs in an
opinion. Numbering the paragraphs after an opinion is completed is a
substantial job. The only practical solution is to number the
paragraphs as the opinion is written.
It turns out that numbering the paragraphs is a much more
complicated matter then might appear. I have asked our supervisor of
training to inform me how to do it. I attach the 15-step set of
instructions that she has provided, after consultation with
WordPerfect.
It appears that these instructions work. However, the expertise
required for setting up the outline program to number the paragraphs
is probably beyond the technical expertise of most judges.
If the courts around the country have the technical expertise to
set up the outline program to number the paragraphs, I have no
reservations about implementing the requirement.
Please feel free to share the attached directions with all of
the courts.
Very truly yours,
SAMUEL L. BUFFORD
Attch.
cc: Judge Geraldine Mund
Mr. Jon D. Ceretto
Ms. Sandi Brask
CREATING A NEW OUTLINE STYLE
1. Click on Tools in the Menu bar.
2. Click on Outline.
3. Click on Options.
4. Click on Define Outline.
5. Click on Paragraph.
6. Click on Options.
7. Click on Setup. Change "default location" to "default
template." (This only has to be done one time no matter how
many outlining options you want.) Click on OK.
8. Click on Create.
a. Type in the name of the outline definition.
b. Type in a description if you want one.
9. Click on Create Style.
10. In the Styles Editor dialog box
a. Type in the name of the style.
b. Type in a description if you want one.
c. Make the following changes:
Select Format/Line/Spacing -- adjust line spacing (1.5
or 2.0), click on OK.
Select Insert -- click on Insert Tab
Delete [hd Left Ind] code
Tap the space bar twice
d. Click on OK.
11. The name of your new outline will appear in the Associated
Style text box. Click on OK.
12. The Outline Define dialog box will appear. Choose the
outline you want to use. Then, click on OK.
13. To use the new Outline feature, close the document. On a new
document click on Tools from the Menu bar.
14. Click on Outline.
15. Select the Outline Style you just created.
To: Joan E. Countryman
From: George A. Vannah
Subject: ABA Uniform Citation
Date: March 12, 1997
As we have discussed on at least two occasions, the last being
in conjunction with the Bankruptcy Clerks' Advisory Group conference
call on March 12, 1997, it seems to me ill-advised for the judiciary
to agree or commit to the use of the proposed citation system as
captioned above, I know that you are thoroughly familiar with my view
and that of other clerks, but for the record, the problem resides in
the requirement of the system that all judicial opinions include in
their citation, an "opinion number" to be assigned serially to each
opinion as it is signed (released, docketed?).
The burden imposed by this requirement would involve substantial
resource allocation, either in work-hours or computer time and
programming. For example, in a large court with a number of judges
staffing chambers at several divisional offices, where the judges
were to sign opinions on a fairly frequent basis, a process to assign
discrete opinion numbers for each would require a person or persons
to coordinate the assignment (probably impossible to do accurately
and timely, certainly very difficult), or a computer program to
automatically check the data base and assign such numbers. In either
case, it is not clear at all, that the benefit to the court customer
is sufficient to justify the burden imposed on the courts' limited
resources. The committee should reject the "opinion number" element
in the citation system,
cc: Glen Palman
To: citation@teo.uscourts.gov
From: mcguire@oknd.uscourts.gov
Date: Fri, 14 Mar 97 10:59:02 CST
Subject: In Favor of Public Comain Citation System
To whom it may concern:
I want to register my strong preference for a vendor neutral,
public domain system of citation of judicial opinions. I have read
about and considered this issue for the past two or three years, and
have concluded that it makes sense to establish a system of citation
that encompasses all methods of opinion dissemination. To rely on a
method that prefers the book over all other means of distribution is
to close our eyes to current reality.
Thank you for your consideration.
Leslie B. McGuire
Assistant Librarian, U.S. Courts
Library (10th Cir.)
4-520 U.S. Courthouse
333 W. 4th St.
Tulsa, OK 74103
March 6, 1997
Appellate Court and Circuit Administration Division
Administrative Office of the U.S. Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE, Suite 4-512
Washington, DC 20544
Attention: ABA Citation Resolution
To Judicial Conference's Executive Committee, Committee on Automation
and Technology:
Dear Committee Members:
Pursuant to the February 20, 1997 memorandum on whether the
federal courts should adopt the form of official citation for court
decisions recommended by the ABA Special Committee on Citation
Issues, our office offers the following comments. At the present time
we have 19 trial attorneys and five appellate attorneys who prepare
and file district court and appellate court briefs.
There was uniformity among the staff in believing that the
resources going into determining the best electronic cite were not
well directed. The lack of uniformity has not caused such great
problems that the citation system needs to be changed. Under the
present system, the person with only electronic access can easily
find cases when given a regular citation to a printed case. On the
other hand, a person without electronic access of any kind will never
benefit from electronic citations, no matter the format.
The proposed solution calls for double cites to every case.
This is bound to be extra time consuming for everyone. It also leaves
less room for actual Argument when one is pressed for space under the
page limitations. It is assumed that every new case will be required
to have the paragraphs numbered in the printed version as well as the
electronic version. If this does not happen, then the failure to
require a citation to the relevant printed page would cause real
problems for anyone who researches at all in print.
Thank you for the opportunity to provide input on this issue.
Please feel free to call me if you would like further comments or
explanation.
Sincerely,
Ann Steinmetz,
Federal Public Defender
Albuquerque Office
AMERICAN BAR ASSOCIATION
POSITION STATEMENT
TO THE
JUDICIAL CONFERENCE OF THE UNITED STATES
ON
CITATION CONVENTIONS FOR THE FEDERAL COURT SYSTEM
On August 7, 1996, the American Bar Association House of
Delegates overwhelmingly adopted a recommendation that all
jurisdictions adopt a universal system of citation which was equally
effective for printed case reports and for case reports
electronically published on computer disks or network services. This
recommendation and the accompanying report were the product of a
year-long study undertaken by the ABA Special Committee on Citation
Issues, which had been established to take up the issue of whether a
new system of citation was needed to accommodate the ever-increasing
use of computers in legal research and in the publication of judicial
decisions. In formulating its recommendation, the ABA Special
Committee on Citation Issues emphasized three fundamental policy
objectives. /1/ The first objective was to recommend a system of
citation which is both efficient and effective for all segments of
the legal profession. The second objective was to ensure the new
system would be medium neutral. The third objective was to achieve a
workable balance between the need for uniformity and the need for
flexibility.
The universal system of citation which was devised to achieve
these goals is especially suitable to single court jurisdictions; but
it can be made equally suitable to multiple court jurisdictions, such
as the federal court system, by breaking down the larger jurisdiction
into its natural subparts. How the recommended universal form of
citation would work for the federal courts is shown by the following
examples:
o Supreme Court of the United States: Smith v. Jones, 1998 US
15, 134 S. Ct. 342.
o United States Court of Appeals for the Fourth Circuit: Smith
v. Jones, 1998 4 Cir 22, 115 F.3d 567.
o United States District Court for the District of Maryland:
Smith v. Jones, 1998 DMD 17, 963 F. Supp. 835.
o United States District Court for the Southern District of New
York: Smith v. Jones, 1998 SDNY 15, 962 F. Supp. 214.
o With a pinpoint citation: Smith v. Jones, 1998 SDNY 15,
paragraph 26, 962 F. Supp. 214.
o For a federal court patent case: Smith v. Jones, 1998 EDVA
15, 27 USPQ2d 456.
o In the Tax Court: Smith v. Commissioner, 1998 TC 3.
Although the ABA recommendation has gained widespread
acceptance, it is not without its critics. Among those most familiar
with the citation reform issues the central question is whether the
citation convention should require a parallel citation to a print
source, such as West's National Reporter System. Some would answer
that question affirmatively. Others would argue that parallel
citation to any source should be forbidden. There was also a sizable
group of practitioners and judges alike who would leave things well
enough alone. Their argument was, "It's not broke; so why are you
trying to fix it?" This position statement will analyze these issues
as well as other questions critical to the successful implementation
of a universal system of citation.
PARAGRAPH NUMBERING. Central to the effectiveness of the
universal citator is the need to number the paragraphs of each
decision before it is released by the court. The internal paragraph
numbers would then become a part of the official text of the opinion
and follow it wherever it was published. In this way, the same
internal marker would lead the reader to the desired location whether
the opinion is found in a printed slip sheet published by the court,
in the bound volume of a printed reporter, or in the computer data
base of an on line research service. Internal paragraph numbers would
eliminate the need to use internal page references in parallel
citations and would be available from the moment the decision was
released.
PARALLEL CITATIONS. Until electronic publication of case reports
becomes generally available to and routinely relied upon by the
courts and lawyers in the jurisdiction, each jurisdiction should
strongly encourage parallel citation to print case reports. When a
cited authority is not available in those printed case reports, the
jurisdiction should require counsel to provide printed copies of the
opinion cited to opposing counsel and to the court. The parallel
citation should only be to the first page of the reported opinion.
As noted above, parallel pinpoint citations serve no function when
paragraph numbers are available, and they should not be used. The
ABA favors parallel citation to any print source "commonly used in
the jurisdiction." The ABA rejected the notion that parallel
citations be required, but also believed that forbidding parallel
citation entirely would severely undermine the goal of medium
neutrality. The ABA recommendation emphasizes its policy orientation
toward ensuring equal ease of access to the law for lawyers who may
never want to turn on a computer, much less use one in the practice
of law.
DOCKET NUMBERS. In its report, the ABA Special Committee on
Citation Issues rejected the use of docket numbers as the universal
citator. Docket numbers offer a superficial attraction as a means of
identifying the decision to be cited, because well-established
techniques are already in place for the assignment of a docket number
to a case. In contrast, new systems will have to be developed and
implemented by the courts in order to assign a new, unique identifier
to each decision. Nonetheless, their superficial attraction belies
the many disadvantages of docket numbers.
Docket numbers are assigned sequentially at the time the case is
filed. Multiple decisions in a single case would have the same
docket number. There would be no sequential numbering of decisions
as they are issued, leaving large gaps in the numbering scheme,
jumbling the relationship between the number and sequence of
decision, and making missing and inverted numbers that much more
difficult to spot, features which will greatly increase the
likelihood that mistakes will be made in administering and using the
system. Frequently docket numbers have extra little twists, built in
to suit the needs of a specific court, that compromise their use for
citation. For example, many courts include a judge's initial in the
docket number; so, if the case is reassigned, the docket number
changes. Most telling, though, is the fact that docket numbers are
not medium neutral. If their other defects could be overcome with a
superimposed numbering system which would make the modified docket
number unique to each decision, docket numbering would still only
work in the electronic medium. Docket numbers do not work well at all
when it comes time to print the decisions in bound volumes.
THE "PUBLICATION" OF DECISIONS. Modern technology has forced a
redefinition of when a decision is published. No longer can it be
said that a judicial decision is truly "unpublished" after it has
been made accessible to millions of readers over the Internet. The
ABA endorsed convention therefore focuses on whether the decision is
non-precedential or uncitable, rather than on whether it is
"unpublished." Redefinition of when the point of publication occurs
also forces a re-examination of the practice of the post-release
editing of judicial opinions by judges and the publishers of the bound
printed volume. Under the new convention, an opinion is "published"
when it is first released to the public. If later revised, the
modified opinion would require a new sequential number. (Example:
Smith v. Jones, 1998 US 15, modified 1998 US 47.)
DECENTRALIZATION AND THE ADMINISTRATIVE BURDEN. The American Bar
Association determined that each jurisdiction should be given as much
discretion as possible to administer the citation conventions in its
own way. Under the ABA proposal, individual courts would be
responsible for such things as deciding which of its judicial acts
would be given a sequential number, administering the sequential
numbering of those decisions, and administering the required internal
paragraph numbering. In contrast to advocates of a centralized
system of assigning sequential numbers, the ABA concluded that each
court was in a better position to assign its own individual
sequential numbers. Dialing 1-800-LAW-CITE to get a sequential
number would put the entire federal court system at risk in the event
of a technical malfunction and deprive each district of having its
own decisions sequentially numbered. Here lies the crux of the
competing tension between the need for uniformity and the need for
flexibility. To keep the modern citation of cases from being a
cacophony of fifty-one different citation conventions, uniformity is
essential. On the other hand, central planning routinely fails
because is unable to take into consideration the needs of those in
the field who must make the central plan work. Thus it was that the
ABA determined that the recommended system of citation was but a
beginning point, to be later shaped to fit the individual needs of
individual courts.
Closely related to the issue of decentralization is the issue of
administrative burden. Thus far, fears of increased administrative
expense have been dispelled by the experience of those jurisdictions
which have already implemented comparable citation systems. The ABA
committee which studied the citation issues was advised that many
Canadian courts, including the Supreme Court of Canada, have employed
paragraph numbering since the beginning of 1995 with little increased
burden. According to these reports, court personnel were trained in
a matter of a few hours. The Canadian experience was replicated by
the United States Court of Appeals for the Sixth Circuit. For over a
year the Supreme Court of South Dakota has used a sequential case
numbering system with little reported expense or disruption. /2/
CONCLUSION. The argument, "It's not broke; so why are you trying
to fix it?" was considered but rejected by the American Bar
Association. Modern technology permits fast, cheap legal research on
the Internet. Volumes of case reports that once filled a room can
now be carried on a compact disc in a lawyer's pocket. Private
sector vendors are standing in line to compete with each other to
provide reliable, inexpensive case reports. The vehicle that makes
this all happen is a citation, unique to each decision, that is
available from the moment the decision is issued and is the same
regardless of whether the opinion is published in a book, a slip
sheet, a compact disc or an on-line data base.
Market forces will dictate what the law library of the Twenty-
First Century will look like. The citation conventions recommended
by the American Bar Association win give the market place the freedom
and flexibility it needs to do its work.
James E. Carbine
Suite 2700
111 South Calvert Street
Baltimore, Maryland 21202
410-385-5300
FAX-385-5201
jcarbine@trialaw.com
!NR
March 14, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
!EN
Ladies and Gentlemen:
In accordance with your letter of February 20, 1997, I am
writing with regard to the April 3 hearing to be held by the Judicial
Conference Policy and Programs Subcommittee concerning the American
Bar Association citation policy.
During the existence of the ABA Special Committee on Citation
Issues from August, 1995, to August, 1996, I served as its chair.
I have submitted a written outline describing the information
gathered by the citation committee and the process followed by the
committee in formulating the recommendation that became the ABA
citation policy. The Subcommittee may have questions or requests for
further information about the citation committee's work. If so, I
will be pleased to make an oral presentation at the April 3 hearing.
I would be the only person appearing for this purpose. The
subjects I would address are any questions and requests the
Subcommittee might have concerning the citation committee's work. The
amount of time for this presentation would be at the pleasure of the
Subcommittee. I would appear as an individual, and not as a
representative of the American Bar Association or any other
organization. If the Subcommittee would like to send me questions or
requests prior to the date of the hearing, I will be glad to provide
advance copies of my testimony to the extent time allows.
Communications may be directed to:
!NR
404/853-8062
Telecopier -- 404/853-8806
Email -- jdfleming@sablaw.com
Please let me know if further information is needed.
Sincerely yours,
J. D. Fleming, Jr.
STATEMENT OF J. D. FLEMING, JR.
TO THE JUDICIAL CONFERENCE OF THE UNITED STATES
THE ABA'S POLICY ON CITATION SYSTEMS
!EN
I am submitting these comments as an individual, not as a
representative of the American Bar Association or any other
organization. I served as chair of the former ABA Special Committee
on Citation Issues. The purpose for this submission is to summarize
the nature of the information collected and the process followed by
the Committee in developing the recommendation that the Association
adopted as its policy in August, 1996. I win also be glad to respond
to questions or to provide additional information if requested.
1. CREATION OF THE AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE ON
CITATION ISSUES.
In recent years, growing numbers of court decisions have become
available through electronic publication soon after their release.
Current decisions of many courts may be obtained free or at a nominal
cost from databases maintained by law schools and the courts
themselves. Large collections of decisions are published by a number
of commercial vendors on computer discs, at a cost substantially less
than that of printed reports. A single small disk can hold as much
information as many volumes of printed reports.
The traditional method of citing to volume and page numbers in
printed reports cannot be used effectively for electronic reports
because the printed reports, and therefore the volume and page
numbers, typically are published weeks and often months after the
electronic reports. In an effort to develop citation methods that
work effectively both with books and with computer databases, a
number of jurisdictions are considering or have recently adopted new
citation systems. While there are similarities, these new systems
differ significantly among themselves.
At the 1995 Annual Meeting of the American Bar Association, the
Board of Governors created the Special Committee on Citation Issues
in an effort to help avoid a proliferation of varying citation
systems across the nation. The Board of Governors direction to the
Committee was:
"The Special Committee shall (1) evaluate citation issues,
inviting views from all ABA entities and organizations active in
fields related to legal citation; (b) develop recommendations
concerning a citation system which will be broadly acceptable to
the bar and to the courts; and (c) recommend action for
consideration by the Board of Governors and the House of
Delegates at the 1996 Annual Meeting."
Since the Committee was given only a year to complete its task,
the Board decided that it needed to be a small working group, but
that it should include a broad representation from the ABA sections
and divisions, the state bars, law schools, and the state and federal
judiciary. To achieve this objective, President Roberta Ramo
appointed the following members:
Robert W. Barger, Immediate Past Chair, ABA Section of Science
and Technology (New Jersey).
James E. Carbine, Co-chair, Trial Practice Committee, ABA
Section of Litigation (Maryland).
J. D. Fleming, Jr. (Chair), Former member of the ABA Board of
Governors and former Chair, Section of Science and Technology
(Georgia).
Professor Patricia B. Fry, Council Member, ABA Section of
Business Law (North Dakota).
Robert E. Hirshon, Chair Elect, ABA Tort and Insurance Practice
Section (Maine).
Judge Thomas S. Williams, Vice Chair, Court Management and
Administration Committee, ABA Judicial Administration Division
(Wisconsin).
Carolyn B. Witherspoon, President, Arkansas Bar Association
(Arkansas).
President Ramo also appointed liaison members to the Committee
from the following organizations who designated them:
Noel J. Augustyn, Administrative Office of the United States
Courts
Judge Danny J. Boggs, Judicial Conference of the United States
Lucian T. Pera, Board of Governors, American Bar Association
Rita T. Reusch, American Association of Law Libraries.
The liaison members participated fully in the activities of the
Committee and gave the Committee the benefit of their views and
advice, but did not vote on any proposals before the Committee.
In keeping with the policy of the ABA, each voting member of the
Committee executed a statement certifying the absence of any material
interest in the subject matter being studied by the Committee.
Because the liaison members did not vote, they were not asked to
submit a conflict statement.
2. THE ABA COMMITTEE'S STUDY.
In mid-October, 1995, the Committee sent notices of its
assignment to organizations and individuals interested in citation
issues and invited the submission of information and comments. From
the submissions that were received over the next month, the Committee
identified proponents of different views on the issues before the
Committee. The Committee invited eight entities and groups,
representing the entire spectrum of opinion, to make oral
presentations at a meeting in Chicago on December 8, 1995. General
argument of positions in these presentations was discouraged since
those arguments had already been offered in the written submissions.
Instead, the representatives were asked to respond to written
questions sent to them by the Committee and to additional questions
raised by the Committee during the meeting. A copy of the written
questions is attached as Exhibit A. The entities and groups invited,
all of whom accepted, were:
!NR
ABA Section of Intellectual Property Law
American Association of Legal Publishers
Association of Reporters of Judicial Decisions
State Bar of South Dakota
Taxpayer Assets Project
West Publishing Company
Wisconsin State Bar
!EN
Two members of the Wisconsin State Bar appeared, one
representing the state bar itself which had petitioned the Wisconsin
Supreme Court to adopt a generic citation approach, and one
representing the views of individual members who opposed the position
of the Wisconsin State Bar.
The December 8 meeting was very helpful to the Committee in
developing an understanding of the range of views on citation issues.
To expand this understanding, the Committee broadened its invitations
to submit comments and recommendations by individual contacts,
particularly with the judiciary, and by making widespread
distribution of an announcement of the Committee's activities and the
schedule for completion of its assignment. A copy of this public
announcement is attached as Exhibit B.
The Committee's notice was posted on the ABA Network on the
Internet and it was widely redistributed from that site by a number
of organizations and individuals interested in citation issues. Some
created links to the ABA Network site from their own sites and others
duplicated the notice and distributed it through newsgroups or the
mail. In January, 1996, the Committee sent memos and letters, with a
copy of the notice, to many additional organizations to invite the
submission of views and comments. The recipients of these additional
invitations included the chairs of all ABA sections; the chairs of
all ABA divisions; the presidents of all state bars; all members of
the Conference of Chief Justices, which is comprised of the chief
justices of all states; and the editors of the two leading citation
manuals, the Bluebook, published by the Harvard Law Review
Association, and the Maroonbook, published by the University of
Chicago Law Review.
Extensive written submissions were received by the Committee
from many sources. The Committee evaluated in detail all submissions
received through early March, 1996, and prepared a preliminary report
setting out its tentative conclusions and recommendations.
3. THE ABA COMMITTEE'S PRELIMINARY REPORT.
In mid-March, 1996, the Committee's preliminary report was
released for public comment, along with a notice that additional
comments and recommendations submitted by April 22 would be
considered by the Committee in formulating its final report and
recommendation. The preliminary report was posted in full text on the
ABA Network on the Internet and a copy was sent to every person and
entity who had submitted comments to the Committee, as well as to a
number of additional individuals and organizations, including the
Conference of State Court Administrators whose members are the
highest court administrators in their states. It was widely
republished on the Internet, and a number of legal newspapers and
reports printed summaries or the full text of the preliminary report.
Copies were sent by the Administrative Office of the United States
Courts to all chief judges of the United States Courts, all circuit
and district executives, all clerks, all circuit librarians, and
other administrative personnel.
The distribution of the preliminary report for public comment
produced a number of additional submissions to the Committee during
the next two months before its final report was completed. The
Committee reviewed and considered all information it received up to a
few days before its final report was released. While usually
advocating one view or another, most submissions to the Committee
outlined carefully the reasons for their contentions and data on
which the contentions were based, including copies or sources of the
data. The Committee was therefore able to evaluate the supporting
information for itself well enough to be confident of its conclusions
on most of the issues without requesting additional data or
undertaking any separate investigation.
4. THE COMMITTEE'S INVESTIGATION OF THE COST OF IMPLEMENTING A
PARAGRAPH NUMBERING SYSTEM.
There was one very significant exception to the almost uniform
availability of supporting data. Some official court reporters and
publishers of printed reports argued strongly that the use of a
medium neutral citation system based on paragraph numbers would be
technically impossible or at least would involve staggering costs,
ranging into the hundreds of thousands or even millions of dollars.
Some electronic publishers argued equally strongly that using such a
system would impose no burdens at all. Almost no specific information
was provided to the Committee to support either of these opposing
arguments. The Committee therefore found it necessary to gather
supplemental information concerning the feasibility of a medium
neutral citation system.
The path chosen by the Committee was to identify courts that had
already attempted to implement citation systems similar to those
being considered by the Committee. Two court systems were identified
that had substantial experience with providing sequential case and
paragraph numbers: Canada and South Dakota. Many courts in Canada
began using paragraph numbers by 1990 and the Supreme Court of Canada
has numbered paragraphs in its opinions since January of 1995.
Paragraph numbering in the opinions of the South Dakota courts began
in January of 1996 and in August of 1996, paragraph numbering was
begun in the federal district court decisions in South Dakota. The
Committee requested and received information from the personnel
involved in the implementation and operation of the paragraph
numbering system in these courts.
Paragraph numbering was begun in Canada with encouragement from
the publishers of printed reports. The use of paragraph numbers
offered a benefit to the publishers because the paragraph numbers
would be the same whether reports were published in French or in
English. With citation to page numbers, the printing of reports in
both languages was more complicated because identical page numbers
would not result simply from mechanical formatting of the text. The
Committee was told that publishers in Canada realized net cost
savings from the switch to paragraph numbering, and that no publisher
had complained about the change, including Carswell, the largest
Canadian publisher. Carswell is a subsidiary of Thomson Corporation
which is pursing a merger with West Publishing Co.
The experience with implementing the new citation system in the
Supreme Court of Canada and in South Dakota was quite similar.
Training the first secretary in using a word processing macro to
place paragraph numbers required only a few hours, and training each
additional secretary took less than an hour. The cost of implementing
this change was said to be modest, probably less than $2,000.
Though this information was not before the ABA Committee, it may
be of interest to note that the Maine Supreme Court has now adopted
and implemented the citation system recommended by the ABA. Maine's
experience with the implementation was very similar to that of the
Canadian and South Dakota courts reported above. Maine estimates the
typical cost of implementing the new citation system to be below
$5,000 including the equipment to prepare the decisions to be made
available through the Internet, but its own costs were somewhat lower
because it used equipment already on hand instead of purchasing new
equipment. The time required to train the secretaries to use the
paragraph numbering macro was less than 10 minutes for each. Maine
uses Macintosh computers.
The Maine, South Dakota, and Supreme Court of Canada decisions
are published on the Internet. Currently, the Internet addresses are:
!NR
Maine --
http:www.courts.state.me.us/mescopin.home.html
South Dakota --
http://www.sdbar.org/
Supreme Court of Canada --
http://info.ic.gc.ca/opengov/supreme.court/sc.home.html
!EN
Paragraph numbering appears in the reports on these sites. In
addition, West Publishing Co. now routinely publishes the South
Dakota state court opinions in the N.W. 2d reporter, complete with
paragraph numbers. Both Lexis and Westlaw include the paragraph
numbers in their on-line reports. No difficulty with publishing any
of these reports has been reported to my knowledge.
5. BRIEF COMMENTS ON THE ASSIGNMENT OF SEQUENTIAL CASE NUMBERS.
The Committee gave less attention to the mechanics of assigning
sequential decision numbers. From time to time, the issue was
mentioned, but it was approached as a matter of administrative
inconvenience that would need to be worked out, and not as a ground
for significant objection to a medium neutral system. The Committee
thus did not comment on this issue in its report. Some information,
however, was gathered on this point.
State court personnel did not seem to view the assignment of
sequential decision numbers to be a significant problem. Decisions in
these courts are usually prepared by a few secretaries and obtaining
a number by telephone or email from a clerk was thought to be a
reasonable solution.
In the federal courts and a few states, units of a single
reporting court are in scattered locations and some courts involve a
large number of units. These systems may require a more automated
method of assigning sequential decision numbers. Several approaches
were suggested to the Committee to respond to this need, and three
seemed to be quite workable.
The first solution would use manual assignment, but at a point
in the process after the responsible judge decides that the decision
is ready to be released. Until the decision is released to the
public, the sequential number is not needed, and the court win
probably handle the decision using the docket number in any event.
[The Committee concluded that the use of docket numbers for the
medium neutral citation would be unsatisfactory. Final Report,
paragraph 24. When the court releases the decision, a copy is
normally mailed to the parties. Many courts currently release the
decision to the public either on computer discs, email, or computer
bulletin boards at or shortly after the time it is mailed to the
parties. In some courts, hard copies become available to the public
when the decision is entered by the clerk. As a practical matter,
this release determines the earliest point at which the sequential
case number needs to be assigned because the case will not be cited
prior to its release to the public. Since the release to the public
will usually be handled by one, or at least very few, of the court's
computer personnel or clerks, the manual assignment of the case
number and the editing of the computer file to add it at the time of
release is likely to be practical.
The second promising method suggested to the Committee by court
administrative personnel involves automated case number assignment.
Many, perhaps most, of the larger court systems now maintain computer
bulletin boards, such as those in the federal PACER system, and it is
likely that all courts will have these systems soon. The Committee
was told that all of these bulletin boards are accessed through
passwords, and that it would be simple to have a small section of the
bulletin board accessible only to authorized court personnel who
prepare the final decisions for the court. This section of the
bulletin board would display a screen on which the user would type in
the docket numbers of the cases for which sequential decision numbers
are needed. When the user enters the key to exit the system, the
computer would instantly assign decision numbers, increment the
stored next decision variable to the next available decision number,
output the list of docket and decision numbers to the user, and
record the list and the user number in a simple database. If multiple
accesses are sought at the same time, the computer would queue them
and process them sequentially. Since the computer transaction is
extremely simple, the delay time for any user would be quite brief.
The programming required for this system was described to the
Committee as being elementary.
The third method suggested to the Committee is more automated.
This method would employ a remote terminal at the desk of each person
who prepares final decisions. The terminal could be a less complex
version of the card terminals now used universally by commercial
establishments around the country to clear credit card transactions
through American Express, VISA, and other data processing facilities.
When the decision is ready to be released, the terminal would be
activated in order to contact a central computer by phone or a
network, and the computer would send the next sequential number to be
printed or displayed on the terminal, or fed to the user's word
processor to be inserted into the decision file. The Committee was
told that knowledgeable technical personnel in judicial
administration offices consider this approach to be entirely
feasible.
6. FILING AND SPONSORSHIP OF THE ABA COMMITTEE'S REPORT AND
RECOMMENDATION.
The final report and recommendation of the ABA Committee were
filed with the ABA House of Delegates as required on May 24, 1996,
and it was docketed as Report No. 107. Additional comments and
information were received up to the time the House of Delegates
opened debate on Report No. 107 on August 7, 1996. All of this
information was reviewed and considered by the floor delegation
presenting the report before the House.
After Report No. 107 was filed with the House, several ABA-
related organizations elected to join as co-sponsors. The co-sponsors
of the report, in addition to the Committee, were:
!NR
Atlanta Bar Association
Coordinating Commission on Legal Technology
Litigation Section
Massachusetts Bar Association
Milwaukee Bar Association
Section of Science and Technology
State Bar of South Dakota
State Bar of Wisconsin
Tort and Insurance Practice Section.
!EN
7. CONSIDERATION OF REPORT NO. 107 BY THE ABA HOUSE OF DELEGATES.
During the floor debate on Report No. 107, the proponents were
representatives of the co-sponsoring organizations. The only
organization which spoke in opposition to the adoption of the
recommendation was the ABA Section of Intellectual Property Law. The
Conference of Chief Justices moved to postpone action indefinitely,
but did not oppose the recommendation. These two efforts are
discussed briefly in the following paragraphs.
The Section of Intellectual Property Law endorsed the
recommendation of the adoption of a medium neutral citation system
but urged that the new system be an optional alternative to the
traditional methods of citation and that disclosure of the actual
source used by the writer be required. The proponents of Report No.
107 opposed these recommendations for change on the ground that
uniformity requires a single citation system, not optional
alternative systems, and that requiring citation of the specific
publisher would encumber legal citation without any corresponding
benefit.
A resolution, a copy of which is attached as Exhibit C,
concerning Report No. 107 was proposed by the Conference of Chief
Justices Committee on ABA Citation Issues (hereinafter the "COCJ
Committee"), composed of five state chief justices, and the
Conference adopted the resolution on August 1, 1996. The Conference
resolved that the state courts should plan to establish an improved
citation system effective for both electronic and print publications.
The resolution also criticized the ABA citation committee on the
ground that "the ABA committee study did not include or involve
consultation with the Conference of Chief Justices prior to the
issuance of that report" [the report being considered by the ABA at
its August, 1996, meeting] and stated that "the report of the
committee inadequately addresses the perceived problems." This was
the ground for the motion by the Conference of Chief Justices to
postpone consideration of Report No. 107 by the House of Delegates.
I spoke in opposition to the motion of the Conference of Chief
Justices, summarizing the following previous contacts with the chief
justices which we had described in correspondence with the COCJ
Committee on April 1 and July 18, 1996, and in several telephone
conversations. (1) A chief justice who later became a member of the
COCJ Committee was advised of the assignment of the Committee in
August, 1995, as an officer of an ABA organization which was being
asked to recommend a member. (2) Members of the Committee contacted
their own chief justices concerning the Committee's work. (3) The
Committee wrote every chief justice on January 26, 1996, describing
the Committee's assignment and inviting the "submission of comments
and recommendations on citation issues . . . . " A copy of the
memorandum is attached as Exhibit D. Responses were received by the
Committee from and on behalf of some chief justices. (4) Beginning on
April 1, 1996, after the release of the Committee's preliminary
report for comment and three weeks before the time by which comments
were requested, the ABA Committee wrote the COCJ Committee, sent
information it had collected, and spoke with the COCJ Committee
several times by telephone. The ABA Committee wrote four letters in
which it asked to meet with members of the COCJ Committee in person
or by telephone. No responses were received to these letters. In the
more than four months the ABA Committee and the COCJ Committee
corresponded before the floor debate on Report No. 107, no
substantive comments were received from the COCJ on the ABA
Committee's preliminary or final reports. For these reasons, I
contended that the Conference of Chief Justices had notice of the ABA
Committee's assignment and a meaningful opportunity to participate in
the development of the Committee's recommendations.
Following debate, the House of Delegates defeated the COCJ
motion to postpone action by a vote of approximately 2 to 1. The
House then voted on the adoption of Report No. 107, and the report
was adopted as the policy of the American Bar Association by the
affirmative vote of about 85% of the House.
8. CONSIDERATION OF THE ABA CITATION POLICY BY OTHER ENTITIES.
I have not followed actively the instances in which courts and
other entities have given attention to the ABA Citation Policy, and
can only report those that I have run across in casual reading.
The recently released 16th edition of the Bluebook, published by
the Harvard Law Review Association, provides a citation method in new
Rule 10.3.1 that is substantially the same as that called for by the
ABA Policy.
As previously noted, the Supreme Court of Maine has adopted the
system called for by the ABA Policy and is currently using that
system in its reports. Several state bar associations have begun
procedures to recommend the adoption of the ABA Citation Policy by
their courts. I am informed that these include Arkansas, New Jersey,
and Tennessee.
Additional information about the ABA citation policy can be
obtained through the Internet by accessing the home page of the ABA
Network at http://www.abanet.org/, then selecting the "Entities"
button, then the "Citation Issues, Special Committee on" button.
Among the material that can be found through the ABA Network in this
manner is an excellent background summary of the development of
medium neutral citation systems. "Freeing the Law: Case Reporter
Copyright and the Universal Citation System," 24 Fla. St. U. L Rev.
217 (1996). This article is also a superb example of some of the
advantages electronic publishing can offer in legal research because
it contains links permitting the reader to jump quickly between the
text and a footnote referred to in the text, and links giving direct
access to a number of statutes, rules, reports, articles, and cases
cited in the footnotes.
!NR
March 14, 1997
J. D. Fleming, Jr.
404/853-8062
FAX 404/853-8806
Email jdfleming@sablaw.com
!EN
January 26, 1996
MEMORANDUM
TO: State Chief Justices
FROM: ABA Special Committee on Citation Issues
RE: Invitation to Submit Comments
At the annual meeting of the American Bar Association in August,
1995, the Board of Governors created a Special Committee on Citation
Issues. The work of this committee is described in the attached
summary.
The committee is inviting the submission of comments and
recommendations on citation issues from all interested entities. We
welcome submissions from the judiciary.
J.D. Fleming, Jr.
Chair
EXHIBIT D
CONFERENCE OF CHIEF JUSTICES
RESOLUTION IX
Development by the Conference of Protocols for
Citation Systems
WHEREAS, the state courts in each state have the primary
responsibility to determine the manner in which they will publish and
disseminate the official opinions of each of their courts; and
WHEREAS, the publication of such opinions must reflect
technological change so that the public and legal community can be
afforded fair access to such opinions; and
WHEREAS, the American Bar Association has undertaken to adopt
recommendations for uniform citation conventions after a study and
recommendation by an ABA committee; and
WHEREAS, the ABA study did not include or involve consultation
with the Conference of Chief Justices prior to the issuance of that
committee report; and
WHEREAS, the report of the committee inadequately addresses the
perceived problems;
NOW, THEREFORE, BE IT RESOLVED that:
* it is appropriate for state courts to plan for improvements in
state citation systems that will recognize the importance of the
electronic media and establish a level playing field between print
and electronic reporting of state court decisions;
* it is premature to adopt any particular plan for change in
prevailing citation systems before the Conference has further
opportunity to obtain reliable answers about the manner in which any
changed system would operate and the costs that such a changed system
would entail;
* the Conference should undertake its own study, assisted by the
National Center for State Courts, to consider various ways of
adapting to electronic dissemination of state court opinions with a
view toward developing a series of protocols that might provide an
acceptable national and uniform model for each of the state courts to
consider, adopt or modify in light of the needs of the courts of that
particular state.
EXHIBIT C
Proposed by the Committee on ABA Citation Issues and the Board
of Directors of the Conference of Chief Justices in Nashville,
Tennessee, at the Forty-eighth Annual Meeting, on August 1, 1996.
OFFICE MEMO
Subject: ABA Citation Resolution
Time: 9:33 AM
Date: 3/14/97
I would like to take this opportunity to encourage the
Administrative Office of the United States Courts to adopt the form
of official citation recommended by the American Bar Association. As
a member of the ABA Special Committee on Citation, I studied the need
for medium neutral citations and the costs of such a decision. I am
convinced of the following:
1. It is essential for the courts to adopt citation protocols
which are medium neutral. There can be no question that the courts
and those who use them must be able to use non-paper-based research
materials as freely as they now use paper-based research materials.
Yet existing citation conventions, i.e. systems such as that
described in the Harvard Blue Book, are useful only for paper-based
systems. The ABA resolution recommends a citation convention which is
medium neutral. [It is akin to the chapter and verse system used for
citation to Biblical references -- a citation system adapted both to
the scrolls used for centuries and the bound volumes which came into
use after the printing press. As was true in the era of scrolls, it
is true in the emerging era of non-paper-based reference materials
that book and page references are not only awkward, they do not
permit accurate citation.]
2. The citation method should refer to the original source, the
opinion of the court which rendered it, and pinpoint citations should
be to the paragraph of the opinion. Both are more accurate than the
paper-based system of citing to book and page.
3. The system recommended by the ABA is useful to those who will
continue to use paper-based systems and thus minimizes any necessity
of forcing anyone to adapt to the new citation systems. It
permits natural evolution rather than imposed revolution.
4. The ABA recommendations do not impose unreasonable costs on
the paper-based publishers but do permit entry into the field of
publishing legal publications by non-paper-based publishers, thus
increasing competition.
5. The costs of adapting judicial resources to the new system
are relatively minimal, both in terms of training and of equipment.
Reports on the costs experienced in courts which have adopted medium-
neutral citations indicate they are minimal. The creation or
purchase of paragraph numbering software, and a relatively brief
period of training for some clerks, appear to be the primary costs.
Informal conversations with the chief clerk of the North Dakota
Supreme Court, for example, indicate that the transition was fairly
painless and simple. Informal conversations with the members of the
North Dakota Supreme Court, both those which will use books
throughout their careers and those dwho have used electronic
materials, indicates they have found the new system useful and
beneficial.
6. Adoption of medium neutral citation systems is extremely
beneficial to members of the legal profession. It has become
impossible for most law firms, whether of medium or small size or in
medium to small towns, to maintain complete legal libraries. In
many towns, firms have combined resources and established joint
libraries in an effort to cope with the constantly rising costs of
maintaining sufficient resources for their needs. Many lawyers
lack access to all but the most basic materials. Experience in
those states which have adopted medium-neutral citation systems shows
[1] a decline in the cost of reference materials and [2] a pronounced
rise in the use of such resources by members of the bar, and
particularly by smaller firms and those in smaller towns.
7. Any citation system adopted should be reasonably uniform
across the Nation. The legal profession crosses state lines in
its work to an increasing degree today, and it may be assumed that
this situation will accelerate. Widely differing citation conventions
create barriers to the ability of members of the profession to serve
all of their clients' needs. It is preferable for the same system
to be used by all of the federal courts.
Thank you for furnishing me with the opportunity to submit these
comments to the Administrative Courts.
Patricia Brumfield Fry
Professor of Law
[Member, ABA Special Committee on Citation)
University of North Dakota School of Law
Grand Forks, ND 58202
phone: 701-777-2223
fax: 701-777-2217
email: pat.fry@thor.law.und.nodak.edu
Subject: ABA Citation Resolution
Date: Fri, 14 Mar 1997 15:25:00 +0000
From: NET9!PO9!BiermanL@aba.attmail.com (Bierman, Luke)
To: citation@teo.uscourts.gov
CC: NET9!PO9!aba!NET9!PO9!BiermanL@aba.attmail.com, +
12155802146/ATTN=ns@fax.attmail.com
The following is submitted on behalf of the ABA Judicial
Division, Hon. Norma L. Shapiro, Chair. Questions can be referred to
Luke Bierman, Director, Judicial Division, 541 North Fairbanks Court,
Chicago, IL 60611, phone 312-988-5703, fax 312-988-5709, email
biermanl@staff.abanet.org
Comment on Adoption of ABA Citations Resolution
Three of the six Judicial Division Conferences supported the ABA
resolution on citations. It should be noted, however, that three
constituencies of the ABA who are very affected by this policy, the
Appellate Judges Conference, the National Conference of Federal Trial
Judges and the Conference of Chief Justices, all opposed its
adoption. Three reasons are paramount:
1) Instead of encouraging adoption of a uniform electronic
citation format and encouraging its use as a parallel cite to the
Reporters currently in use, the policy encourages adoption of the new
format as the primary cite. Thus, it recommends that courts not
require page citation to current Official Reporters. This would leave
courts that are not online without precise citation to readily-
available authority.
2) It may be premature to adopt the ABA model until litigation
is resolved; the Conference of Chief Justices advises that there may
be litigation pending involving West Publishing Company and the
copyright issue over pin-point citations.
3) The Conference of Chief Justices is currently conducting a
survey of all state courts seeking information on how the proposed
system would operate and the costs of this changed system. Until this
information is analyzed, the Conference of Chief Justices is opposed
to the ABA recommendation as to citation style and proper respect for
federal/state judicial relations suggests that the Judicial
Conference (and federal judiciary generally) should defer at least
for the present. It also should be noted that with regard to citation
in state reporters, there is likely to be little implementation of
the ABA policy until the Conference of Chief Justices is satisfied
with the format.
cc: Conference of Chief Justices
TO: The Committee on Automation and Technology of the Judicial
Conference of the United States
FROM: The American Association of Law Libraries
RE: The ABA Citation Resolution
DATE: Mar. 12, 1997
INTRODUCTION
Paragraph 1 The American Association of Law Libraries (AALL) is
an association comprising over 5,000 members who serve in academic,
private and government law libraries. AALL promotes free and
effective access to legal information, and was one of the first
organizations to publicly support medium-neutral citation. /1/ AALL
urges the federal courts to adopt the American Bar Association-
endorsed medium-neutral (or "universal") citation form for federal
judicial decisions.
Paragraph 2 I. There are two key reasons why the federal courts
should adopt the medium-neutral citation form endorsed by the
American Bar Association: 1) it will increase access to legal
information by facilitating the transition and expansion of the text
of the law from paper to electronic media; and 2) it will guarantee
that both the text of the law and the means of citing the law are in
the public domain.
Paragraph 3 A. Access to Electronic Law. The fact that nowadays
decisions are disseminated in both print and electronic form is a
compelling reason to change citation form away from a print-dependent
form. Virtually all judicial decisions are now written and issued in
electronic form originally, using word processing software. Page
numbers are artificial conventions. If the size of the print or the
margins changes, the paging changes. Whereas opinions were formerly
published in final form in one or two print reporters, with fixed
volume and page numbers, today's decisions remain in electronic form,
resident in electronic databases, making volume and page numbers
unnecessary if a better citation system can be devised. Such a system
was devised by the Wisconsin bar, and has now been adopted for
national use by the American Association of Law Libraries and
substantially reaffirmed by the American Bar Association. In that
system, each decision is permanently numbered at the time of release,
eliminating the need for a volume and initial page number, and each
paragraph of the decision is numbered at the time of publication. The
paragraph number is part of the text of the decision. Consequently,
there is one universal citation, good from the beginning, no matter
what medium is used or which publisher distributes the opinion.
Paragraph 4 The United States Reports are a good example of the
second reason for changing citation form. It is the official reporter
for U.S. Supreme Court decisions, thus its citations are in the
public domain; however, more than a year elapses between the
publication of a U.S. Supreme Court decision and its printing in
advance sheet form, with final volume and pagination information. The
Supreme Court now issues its opinions in electronic form via the
Hermes project. Switching to numbered decisions and paragraph numbers
would allow attorneys to cite a U.S. Supreme Court case in final form
from its very first appearance, hours after release. Ironically, at
the present time attorneys must wait more than a year for the final
citation form of U.S. Supreme Court opinions.
Paragraph 5 Similarly, dissemination of Circuit Court of Appeals
decisions now takes place electronically through the BBS systems at
each court. If each Circuit assigned decision and paragraph numbers
to its opinions, they could be downloaded and published, or cited,
straight from the BBS or the Internet, without later checking other
types of publications for "final" citation form. It is only a matter
of time before District Court opinion will appear on the Internet as
well. However, only by adopting this citation system will the full
benefits of the electronic dissemination of case law be realized.
Paragraph 6 B. THE NEED FOR PUBLIC DOMAIN CITATION FORM -- the
Copyright Dispute. The issue of copyright of case citations as
regards federal court decisions first arose in the 1980s, when West
Publishing Co. sued to enjoin Mead Data (the then-owner of LEXIS)
from adding internal page numbers (star pagination) of the Federal
Reporter to the LEXIS legal database. West claimed that it owned
copyright to the volume numbers, reporter names and pages of its
reporters. It ceded fair use of the "initial citation" -- the volume
number, reporter name, and initial page of a decision -- but claimed
that the internal pages of the cases fell under the protection of
copyright, because of the unique way in which West arranged cases
within volumes. The Eighth Circuit ruled in favor of West. /2/ This
result meant that even though the text of federal judicial decisions
are in the public domain, the accepted method of citing to such
decisions was not (at least, not in the Eighth Circuit). Ultimately
the parties settled, and LEXIS paid West licensing fees to use its
page numbers. West still insists on the payment of license fees from
publishers who wish to include internal page numbers of West
reporters in their publications. Since then, however, the U.S.
Supreme Court has ruled that mere "sweat of the brow" lacking
originality is not enough to merit copyright protection /3/, and last
fall the Southern District of New York rejected West's claim of
copyright for its star pagination. /4/
Paragraph 7 The copyright issue has been further complicated by
the purchase of West by The Thomson Corporation in a controversial
merger requiring federal court approval. West still seeks to charge
any non-Thomson publisher licensing fees for use of its star
pagination. /5/
Paragraph 8 Legal citation convention requires attorneys citing
Federal Reporter or Federal Supplement cases in briefs to use the
citations of these reporters, including internal paging. /6/ This
places publishers who could easily publish the decisions without the
page numbers at a significant competitive disadvantage, since those
who purchase legal information products are not likely to acquire
materials they cannot cite. In turn, public access to the law is
restricted.
Paragraph 9 Requiring the use of a citation established by the
federal courts, not by a single private publisher, will put the
citation form once and for all, indisputably, in the public domain,
freeing access to case law by publishers, who will no longer have to
either pay West's charges, be sued, or sell a product without
necessary pagination.
II. COSTS AND BENEFITS AN OFFICIAL FEDERAL CITATION WILL HAVE FOR THE
COURTS, THE BAR, AND THE PUBLIC.
Paragraph 10 A. Costs and Benefits to the Courts. Following the
ABA's resolution will entail two simple changes in court procedure:
assigning unique numbers to decisions as they are issued in final
form, and assigning paragraph numbers to each paragraph within a
decision as it is issued in final form. AALL recommends that each
Circuit and district court assign its own numbers. This will result
in smaller numbers and less centralization. A central office in each
court, logically the Court Clerk's office, would control the
assignment of opinion numbers. AALL has drafted a "user's guide" /7/
to citation form for case law, similar to the ABA model, that is
included as Attachment C. This user guide demonstrates how eminently
feasible the universal citation system would be. Set out as
Attachment D is a brief guide as to how courts could set up a
numbering system.
Paragraph 11. Paragraph numbering is even easier. Common word
processing software programs such as WordPerfect and Word allow
writers to automatically assign paragraph numbers as they type. As
the appropriate law clerk or secretary reads over the final opinion,
it can be checked for paragraph numbering at the same time it is
proofread. Paragraph numbering should be applied uniformly throughout
the courts; however guidelines for numbering already exist. British
Columbia has numbered its cases and paragraphs for years with no
inconvenience to publishers or researchers. A number of states have
already begun numbering decisions and/or paragraphs. /8/ Attachment E
is several pages from a South Dakota case, following the ABA's
recommended form, as it appears in a West reporter.
Paragraph 12 The benefits resulting from this citation system
include simplification of case citation, and increased access to the
law, for the federal court officers. Currently federal judges, law
clerks and attorneys spend many hours translating into millions of
dollars on research each year. By increasing competition among
publishers, prices of legal research products will drop, thus
allowing the courts to save money.
Paragraph 13 B. COSTS AND BENEFITS TO THE BAR. The only cost to
the bar will be the time needed to learn how the new citation form
works. Benefits include less time spent on finding and converting
citations, and the ability to save significant amounts of money by
using less expensive research sources, such as CD ROM and the
Internet.
Paragraph 14 C. COSTS AND BENEFITS TO THE PUBLIC. Since the
public pays for the courts, the courts' costs and benefits are
indirectly carried over to the public. The public also bears the
costs of legal research by federal, state and local governments.
Lowering the costs of legal research will result in a lower bill for
taxpayers. In addition, however, the public will benefit from greater
access to the law. Licensing agreements of West and LEXIS either
forbid public access to legal databases or make them prohibitively
expensive. Libraries and laypersons will benefit from low-cost
published sources, or case law freely available on the Internet.
CONCLUSION
Paragraph 15 Democracy rests not only on access to the law, but
also access to its citation. There are problems with the current
system of legal citation, but solutions to those problems have
already been proposed. The U.S. Judicial Conference has the
opportunity to put its imprimatur on the solution already supported
by major legal organizations. The American Association of Law
Libraries urges the federal courts to follow the American Bar
Association citation plan and thereby increase access to federal case
law.
FOOTNOTES
/1/ See The Final Report of the Task Force on Citation Formats,
87 L. Libr. J. 577 (1995), included as Attachment A.
/2/ West Publishing Co. v. Mead Data Central, Inc., 799 F.2d
1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987); see also
Oasis Publishing Co. v. West Publishing Co., 924 F. Supp. 918 (D.
Minn. 1996).
/3/ Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340 (1990).
/4/ Matthew Bender & Co., Inc. v. West Publishing Co., 94 Civ.
0589 (JSM) (S.D.N.Y. Nov. 22, 1996).
/5/ See United States v. Thomson Corp., Civ. Action No. 96-1415
(PLF)(D.D.C. Dec. 23, 1996).
/6/ See Rule 10.3 and Table T.1 of The Bluebook: A Uniform
System of Citation (16th ed. 1996) which requires writers to cite the
Federal Reporter or the Federal Supplement if a decision is found
therein. Even if a federal court does not require attorneys to follow
Bluebook form, a number of circuits require citation to the West
reporters, or to volumes, reporters and page numbers -- in other
words, non-medium-neutral forms. See Attachment B, Citation Rules in
Federal Courts for pertinent citation rules. For example, the Federal
Circuit prefers citations to the Federal Reporter. "Parallel
citations . . . are discouraged." Fed. Cir. R. 28(e).
/7/ The AALL Universal Legal Citation Project: A Draft User
Guide to the Universal Case Citation, 89 L. Libr. J. (forthcoming
April 1997).
/8/ Colorado and Missouri allow citations to either page or
paragraph numbers. Maine and South Dakota have adopted the "full"
Wisconsin plan and number both their decisions and paragraphs.
Wisconsin itself now numbers its paragraphs. Louisiana, the first
state to adopt a public domain citation format at the end of 1993,
uses an alternative form requiring docket numbers and slip opinion
page numbers. The system has worked satisfactorily, but indications
are the Supreme Court will soon consider changing to the more
streamlined ABA format
END OF FOOTNOTES
ASSOCIATION FOR COMPUTING
Office of US Public Policy
666 Pennsylvania Ave., SE Suite 301
Washington, DC 20003
http://www.acm.org/usacm/
Via electronic mail to: citation@ao.uscourts.gov
March 14, 1997
Appellate Court and Circuit Administration Division
Administrative Office of the U.S. Courts
Suite 4-512
Washington, DC 20544
Re: ABA Citation Resolution
Dear Members of the Judicial Conference,
The US Public Policy Committee of the Association for Computing
(ACM) supports adoption of the standard citation system for use by
federal and state courts as recommended by the American Bar
Association. We believe that the government should enable citizens
access to legislative, judicial and executive branch information
through the Internet and that such information should be available in
standard formats to promote broad and effective access.
The public domain citation system now under consideration will
promote public access to judicial decisions because it is media
neutral and will support the fast approaching conversion of reference
material of all types. We further believe that by taking this step
the court system of the United States will encourage courts in other
countries to adopt similar changes and thereby promote greater public
access to legal materials around the world. This effort will also
demonstrate to numerous other publishers of government information
that such change is desirable, customer friendly and easy to
accomplish.
The fact that the proposed citation system will enable courts to
publish their decisions immediately, without waiting for a page based
publications process, will provide significant benefits to those in
the legal profession, researchers in many disciplines, and the
general public.
The major operational change proposed is that the court official
producing the decision's text insert paragraph numbers on each
paragraph. This is a feature of most word processing products and
should cause insignificant operational difficulty.
When the proposal is implemented, judges, court officials,
lawyers and the general public will have a consistent, media neutral
text that can be searched electronically and utilized directly in
producing other documents. At the same time, the existing citation
systems will remain available to ensure continuity and accessibility
by those learned in those systems or restricted to paper based
reporting of judicial decisions.
We would appreciate an opportunity to testify on April 3 in
support of the proposal. As an organization of skilled computer
scientists and engineers, the Association for Computing would be
pleased to provide impartial advice on the technical issues of
implementing this proposal. It is a simple, straightforward proposal,
but there may be some technical concerns that we can answer.
We support immediate implementation of the proposed uniform
standard and appreciate this opportunity to provide our comments to
the Administrative Office of the U.S. Court by the Internet.
Sincerely,
Barbara Simons, Chair
US Public Policy Committee,
Association for Computing
TO: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington DC 20544
March 4, 1997
Comment on ABA Resolution to Adopt a Uniform Citation System for
Print and Electronic Case Reports
1. We at the Directorate of Air Force Legal Information
Services, Department of the Justice, Advocate General, United States
Air Force, wholeheartedly agree with the American Bar Association's
Citation Resolution, and commend the Association for its efforts.
2. The current explosion of print and electronic sources of case
reports and other information is a positive development for the legal
system and the legal profession. Unfettered access to the law by the
members of the legal profession and the public is necessary to
maintain a fair and democratic system of justice. The current
profusion legal resources in a wide variety of publishing formats,
permits the widest disseminating legal information at costs
affordable to individual citizens and solo practitioners, to large
law firms and government agencies. Our own organization is a
contributor to dissemination effort by providing Federal Legal
Information Through Electronics (FLITE), a system offering a wide
range of legal materials vital to the practice of and federal law in
an electronic format accessible to the Department of Defense
community. Our customers practice in many different jurisdictions,
courts and forums system of universal, permanent, immediately
available citations for electronic media greatly ease the burden of
parallel citing and cross referencing for those customers would also
significantly increase the speed and reduce the cost of adding new
decision our data base.
3. At present, the Federal courts require citation to federal
reporters in a format a century ago, by a private print publisher,
West Publishing Inc. That citation system based on book volume and
printed page number does not translate well to electronic medium.
Furthermore, the current system of pin point citations is subject to
copyright claims, and is not freely useable by other computer-
assisted legal research systems, FLITE. A significant portion of our
costs for providing data to customers is the lab necessary to import
multiple parallel citations into documents. There are many sour
accurate court documents and decisions from which we could procure
data for our customers at either low cost or no cost if it were not
for the additional cost of incorporating uniform official citations
into those documents. We are a governmental agency, therefore the
ultimate cost of providing data in compliance with the current
citation system is born by the taxpayer. Because of the copyright
restrictions, we can use the pin point page citations at all.
4. Computer technology, particularly the world wide web, permits
the virtually instantaneous publication of decisions rendered final
by a court. However use of this material is hampered by the inability
of a party, researcher, scholar or member of the public to
effectively cite to a publication until those same materials are
formatted printed reports with volume and page numbers assigned, a
process which takes a considerable amount of time. The present
citation system may function well for conventional printed reports,
however requiring electronic case systems to use these printed
citation references deprives users of the speed of electronic
publication. T overall benefits of electronic systems, the lower
cost, the lower space requirements the lower transportation costs as
compared to print medium demand that an accommodation be made to ease
those systems citation burdens. Our customers are located around the
globe and often must perform legal services in places where elect
legal research is a necessity because print medium is either not
available or is imp A laptop, CD-ROM disks and a modem connection to
the internet are often the entire contents of a Department of Defense
legal professional's office.
5. A system whereby all case authorities are cited by stating
the year, a designator court, the sequential number of the decision,
and where reference is to specific mat within the decision, the
paragraph number at which that material appears, is suitable both
print and electronic medium. Such standardization will permit the
profession a public to acquire decisional materials from the source
or vendor of their choosing, into account, ease of use and
accessibility, cost, and timelines of publication. In the suggested
uniform system guarantees to the Courts, litigants, and interested
per the accuracy of materials cited to them as authoritative.
6. The suggested system is effective for all English language
materials. The language based on an organizational scheme of
paragraphs based on content and universal stand of grammar and
punctuation. The current citation system relying on pagination is not
uniform, because pagination varies due to font size and style, page
length or width, display methodology when in electronic form. A
standard system of citation should be designed broadly enough to be
used for all federal court cases, and should sufficient practical to
encourage adoption by other courts and decisional bodies. Our
organization has over 30 years of experience in dealing with multiple
formats and citation styles would gladly accept a single format which
is relatively simple to implement and inte. The ABA's proposal
clearly achieves that result.
Ms. Lynn A. Mokray Mr. James H. Unterspan
Attorney/ Advisor Director, Dept. of
Air Force Legal Information Services Legal Systems
Air Force Legal Services Agency
Maxwell Air Force Base, AL 36112
To: Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Administrative Office of the U.S. Courts
From: David C. Long, Director of Research, State Bar of California
RE: Comment on ABA Citation Resolution
The Board of Governors of the State Bar of California has not
specifically reviewed the ABA Citation Resolution which you
circulated for comment. However, in response to a similar proposal by
the California Advisory Committee on Publication of the Official
Reports, the Board of Governors, on March 2, 1996 adopted the
following resolution:
"RESOLVED, upon recommendation of the Board Committee on Courts
and Legislation, that the Board hereby authorizes transmittal to the
California Advisory Committee on Publication of the Official Reports
of comments favoring adoption of a "format-neutral" citation system
for California published opinions, to co-exist with the present
volume and page number citation system."
If you have questions about this matter, please contact me.
David C. Long
Director of Research
State Bar of California
555 Franklin Street
San Francisco, CA 94102
415-561-8373
Fax: 415-561-8216
CONSTITUTIONAL COURT
CHAMBERS OF JUSTICE A. CHASKALSON
14 March 1997 FAX NUMBER: (091) 202-273-1555
ABA Citation Resolution
Suite 4-512
Administrative Office of the US Courts
Washington
DC 20544
(E-mail address: citation@oa.uscourt.gov)
PUBLIC DOMAIN LEGAL CITATIONS
The Constitutional Court of South Africa supports the idea and
implementation of a public domain system for citation to court
opinions.
This Court has, from it commencement, adopted the policy of
paragraphing all its judgments consecutively as recommended in your
suggestion. All the judgments of our Court are available immediately
after delivery at the following internet address:
http://pc72.law.wite.ac.za/court/courtpam.html
We should appreciate being informed of the progress you make in
making all decisions of the USA courts available in the public
domain.
A CHASKALSON
President
Constitutional Court of South
Africa
Carol D. Billings, Director
Law Library of Louisiana
Supreme Court Building, Room 100
301 Loyola Avenue
New Orleans, Louisiana
March 14, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
To whom it may concern:
On December 17, 1993, the Supreme Court of Louisiana unanimously
adopted a mandatory "public domain citation format" for citing all
opinions and actions issued by the Supreme Court and Courts of
Appeal. The new rule applied to all documents issued after December
31, 1993, and became mandatory on July 1, 1994. Thus Louisiana became
the first state to give practical application to the principles that
advocates of citation reform have been propounding for a number of
years.
While the public domain format that the Louisiana rule requires
differs from that recommended by the ABA, it was adopted for exactly
the same reasons with the same philosophy in mind. (The format uses
the docket number, court abbreviation, and date of release.) The
Supreme Court of Louisiana wished to promote prompt access to court
documents by the legal community and the public at the lowest
possible cost. It also wished to find an alternative to a citation
format that required use of the claimed intellectual property of a
commercial publisher, which it believed conferred an unfair advantage
upon that publisher to the exclusion of others. Recognizing that the
electronic dissemination of opinions via the Internet was about to
become commonplace, the Justices knew that a citation that could be
applied to a document at the time of release would facilitate the
public's use of the information. In fact, the Louisiana Supreme Court
established a web site in March, 1996, where its opinions may be
accessed on the day of release.
As the chair of the committee that proposed Louisiana's public
domain citation format to the Court, I have become a strong advocate
for citation reform. During 1994/95 I served as President of the
American Association of Law Libraries, the national organization
which has pioneered citation reform efforts, recommending a format
almost identical to the ABA's nearly a year and a half before last
August. Chief Justice Pascal F. Calogero of the Louisiana Supreme
Court has encouraged me to "take the lead" in providing information
to other interested government agencies about Louisiana's experience
with our new public domain format.
Many people have inquired about why Louisiana's new citation
format is different from the AALL and ABA recommendations. The simple
answer is that it came about so much earlier than the other
proposals, that our justices were reluctant to make a change in the
procedures for releasing opinions. They had no one else's experience
to use as a guide. Consequently, when my committee in the fall of
1993 recommended a new format virtually identical to the one later
proposed by the Wisconsin Bar, AALL, and the ABA, it seemed radical.
More than three years ago our Court was less technologically
sophisticated, and procedures that now seem simple, appeared to be
potentially daunting. Therefore, the Court compromised and chose to
adopt a format that accomplished its purpose without requiring a
change in the way their staff's and the Clerk of Court's staff
produced the opinions.
The Supreme Court's approval of the new public domain format was
vigorously opposed by the West Publishing Company. Via letters and
telephone calls to the state's judges and lawyers and visits by
company officials, the company attempted to convince the Justices
that the change to a new citation system would cause chaos in the
state's legal community. They argued that the new system could not be
implemented without establishing an office of a state reporter of
decisions at an annual cost of hundreds of thousands of dollars. They
argued that the clerks' offices would be burdened with new duties.
Surely, they claimed, the state's lawyers would not be able to master
the new system.
The new system has now been in use for more than three years,
and none of West's dire predictions has come to pass. The Louisiana
legal system still operates as it did. The Court made sure that a
number of articles explaining the new citation format appeared in bar
publications, and soon the state's lawyers accepted it without
complaint. Two new CD-ROM versions of Louisiana's reports were soon
being published, and the existing West CD-ROM product dropped
drastically in price to meet the competition. Law Office Information
Systems (LOIS) and West now offer their CD-ROM versions of the
opinions at a cost affordable to many solo and small practitioners.
Competition would not have been possible had not the new citation
format, which makes reference to Louisiana cases without using West's
claimed intellectual property, come into being. The Supreme Court's
web site is now accessed heavily by Louisiana attorneys and others
needing the opinions promptly after release.
Louisiana's delegation to the ABA meeting last August voted with
the majority in the House of Delegates to approve the Citation Issues
Committee's recommendation. The current President of the Louisiana
Bar, Charles S. Weems, III, wrote to me following the meeting, urging
me to continue my efforts to encourage the adoption of the ABA format
in Louisiana. I strongly support Louisiana changing its citation
format to comply with the ABA recommendation. I have consulted with
Chief Justice Calogero about this, and at his suggestion, I am
preparing a proposal to that effect which he plans to take before
the Supreme Court. I am optimistic that such a proposal will succeed
and that Louisiana will remain in the vanguard in the cause of
citation reform and improved access to legal information.
I strongly urge the federal courts to lead the way in adopting
and implementing the use of the ABA-recommended citation format to
facilitate the public's access to the laws that govern them. The law
belongs to the people, and the federal courts should do everything in
their power to remove artificial barriers, such as a vendor-
controlled citation system, to that law. Our democracy and system of
justice depend upon it.
Very truly yours,
Carol D. Billings
Director, Law Library of Louisiana
March 10, 1997
Joan Countryman
Administrative Office of the
United States Courts
Marshall Federal Bldg. Ste. 4-560
Columbus Circle
Washington, DC 20544
Re: Citation of Court opinions
Dear Ms. Countryman:
The New Jersey State Bar Association Board of Trustees has
endorsed the Resolution of the American Bar Association that urges
the state and federal courts to change their systems for official
case citation so as to encourage competition among publishers, reduce
costs, and facilitate electronic access to court opinions.
We respectfully urge the federal judiciary to consider changing
the current case citation system, as recommended by the ABA. The ABA
proposal favors a citation system which would be based on the
sequential numbering of opinions by the judiciary, with a designation
of the court, and numbered paragraphs. This system (which does not
rely on volume numbers and page references) would put electronic
publishers on an equal footing with book publishers. The expanded
market that would result would bring down costs for everyone within
the legal community, the courts as well as the bar. Moreover, the
changes recommended by the ABA will facilitate timely access to
opinions and will certainly aid the courts by permitting greater
precision in citations, through the use of citing to paragraphs
rather than pages. The ABA also encourages, at least for the
present, the use of parallel citations to printed reports, until
electronic publication becomes generally available. The NJSBA
supports that recommendation as well.
We appreciate the opportunity to submit comments on this most
important issue.
Very truly yours,
Harold L. Rubenstein
Executive Director
cc: Cynthia M. Jacob
Jay H. Greenblatt
March 14, 1997
Ms. Roseann McLaughlin
American Bar Association
Legal Technology Resource Center
750 North Lake Shore Drive
Chicago, IL 60611
Dear Ms. McLaughlin:
Please be advised that the Board of Governors of the Oklahoma
Bar Association has reviewed the ABA Citation Resolution and is in
favor of the adoption of the Resolution by both state and federal
courts. We believe the adoption of this form of citation will be of
benefit to courts, the legal profession and the public.
If you have any questions or require further information, please
contact the undersigned.
William J. Baker
President
Oklahoma Bar Association
Oklahoma City, OK
Christi Horton
From: Nicholas J. Wallwork
Sent: Monday, March 10, 1997 11:28 AM
To: 'citation@ao.uscourts.govdue'
cc: 'Mike Arkfeld': 'Becky Weiner': Kathy E. Shimpock
Subject: Support for Uniform Citation
The State Bar of Arizona's Board of Governors strongly supports
citation reform and recently submitted a petition to the Arizona
Supreme Court to adopt citation reform within Arizona for state
cases. Our proposal follows the format recommended by the American
Bar Association. I attach a copy of our petition in MIME email in
Word. I am sending you an original by regular mail and can fax or
email it to you in a different format.
I think you will find that the benefits of citation reform in
our state also apply on a national level.
I would be happy to address any questions you may concerning the
Arizona bar's petition.
Nicholas J. Wallwork
Chair
Task Force on the Future of the Profession
State Bar of Arizona
Muchmore & Wallwork, P.C.
1700 N. Central Ave., Ste. 1225
Phoenix, AZ 85004-1165
Voice 602.240.6630
Fax 602.240.6697
wallwork@mmww.com
March 14, 1997
Appellate Court and Circuit
Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Re: ABA Citation Resolution
It has been announced that the Judicial Conference of the United
States will consider whether the federal courts should adopt the
recommendations made by the ABA Citation Committee in 1996.
The State Bar of South Dakota was a supporter of the ABA
Resolution and urges the Judicial Conference to adopt a case citation
incorporating its recommendations. The costs of implementing the
system will be insignificant, but the benefits to the courts, the
bar, and the public will be substantial. The creation of a permanent
citation which is immediately available to the public will
significantly enhance the utility of electronic legal research with
little inconvenience to the traditional "paper" legal research.
The South Dakota Bar bases its support on practical experience
with "publishing" slip opinions of the South Dakota Supreme Court and
the South Dakota Supreme Court's experience after adopting a
"universal citation system" in October, 1995, effective January 1,
1996.
The South Dakota Supreme Court has used the "universal citation
system" since January 1, 1996, and has reported no problems
instituting the paragraph numbering and case numbering requirements.
Adding paragraph numbers using WordPerfect or Word requires only that
the paragraph numbering feature be "turned on" and the style for the
numbering established. Because the paragraph numbering is automatic,
the numbering is automatically revised when a paragraph is added or
deleted. (In fact, the increased use of footnotes in the opinions
presents a more difficult publishing problem than paragraph
numbering.)
The sequential number for the case is assigned by the clerk when
the opinion is released for publication. All concurrences and
dissents are written before the case is released for publication. If
a rehearing is granted and a new opinion issued, the new opinion
receives a new sequential number, and the prior opinion remains
"published."
The sequentially numbered South Dakota opinions with paragraph
numbers are posted to the State Bar's Internet page
(http://www.sdbar.org/opinions/index.htm) within forty-eight hours.
They are also posted on WestLaw, Lexis, and VersusLaw in
approximately the same time period. The opinion is accessible and
citeable by lawyers and judges with the same "universal citation"
regardless of the online service used. When the official report of
the opinion is published (usually about 2 1/2 months later), the
court's official citation remains the same, only the North Western
volume and initial page number is added.
The few complaints from the lawyers using the system appear to
fall into two areas: (1) those who object to any requirement to cite
to a North Western volume and page number, and (2) those who want no
changes to the "traditional" method. (Coincidently, the same type of
complaints are made to the 1995 adoption in South Dakota of the
Uniform Probate Code.) It was for that reason that the State Bar
recommended and the South Dakota Supreme Court adopted the parallel
cites as an accommodation.
For those who use electronic research, the universal citation
has provided an unchanging citation, easy location of pinpoint cites,
and hypertext links with pinpoint accuracy. Research is done faster,
more thoroughly, and at less expense using CD-ROM disks and online
services. The dramatic increase in the Court's Internet websites,
makes a "universal citation system" even more practical, and
necessary, than it was in 1995 when the South Dakota State Bar first
began using it.
A short history and commentary on the adoption of the South
Dakota rule follows.
Respectfully submitted,
Laurence J. Zastrow
Deputy Director
State Bar of South Dakota
THE SOUTH DAKOTA CITATION RULE
In 1976, the South Dakota Supreme Court published the final
volume of the South Dakota Reports. In 1980, to meet the statutory
requirement of an official reporter, the Court entered an Order
designating West Publishing Company's North Western Reporter as the
official reporter.
In 1987, West Publishing requested that the South Dakota Supreme
Court transmit its opinions to the publisher via modem. The State
Bar supported the request because it would allow the official
reporter to provide the decisions in a more timely fashion. At the
1987 hearing then Justice Frank Henderson, noting that WestLaw and
Lexis were very expensive services, challenged the State Bar to make
electronic services available to the small firms at a reasonable
cost. In 1989, with the cooperation of the South Dakota Supreme
Court, the State Bar began to provide the weekly slip opinions on
floppy disks.
Since the internal page numbers of the official reporter could
not be used because of West's copyright claims, the State Bar added
its own page numbers. However, the use of the electronic "slip
opinions" was complicated because the trial courts and some lawyers
were not subscribers to the Bar's publication. The Intellectual
Property Committee was asked to study this problem and suggest a
solution as part of its report.
Professor Mary Brandt Jensen suggested that paragraph numbers be
added to the SDOs as recommended by the American Association of Law
Librarians (AALL). The paragraph numbering exposed the South Dakota
practitioners to an alternative citation method and allowed the
committee to evaluate their reactions. It also allowed the State Bar
to respond to questions about the cost and mechanics of publishing
opinions containing paragraph numbers.
The format finally proposed by the Intellectual Property
Committee was similar to that drafted by the American Association of
Law Libraries but provided for the addition of the official reporter
cite when it becomes available. This requirement was in response to
concerns expressed by those researchers who did not use electronic
databases. Pinpoint citations, however, would be to paragraph
numbers, not page numbers.
The proposed rule change was presented to the South Dakota
Supreme Court on October 18, 1995. No parties appeared in opposition
to the proposed citation rule. It was adopted by the South Dakota
Supreme Court with an effective date of January 1, 1996.
Thereafter, the ABA committee adopted its recommendation. The
North Dakota and Maine Supreme Courts have implemented the "universal
citation system" effective January 1, 1997.
March 17, 1997
Appellate Court and Circuit
Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
RE: Comments of the State Bar of Wisconsin to U.S. Judicial
Conference in support of implementation of proposal adopted by
ABA for federal courts
In August 1996, the American Bar Association (ABA)
overwhelmingly approved a resolution from its Special Committee on
Citation Issues calling for state and federal courts to develop a
standard citation system which would identify the citation on each
decision at the time it is made available to the public. The
resolution recommends that all jurisdictions adopt a system for
official citation to case reports that is equally effective for
printed case reports and for case reports electronically published.
This comment is written on behalf of the State Bar of Wisconsin,
which wholeheartedly supports the implementation of the ABA citation
resolution by the federal courts. For informational purposes,
effective January 3, 1997, the Wisconsin Supreme Court has
implemented paragraph numbering in the electronic format of its
cases.
The federal courts should adopt the form of official citation
for court decisions recommended by the ABA resolution. The costs of
implementing such a citation system are minimal and are greatly
outweighed by the benefits to the courts, the bar and the public in
general.
The courts, the bar, and the public would greatly benefit from
the adoption of the standard citation system due to its timeliness,
convenience and cost savings. In this age of computers and
technology, the adoption of a standard citation system is an idea
whose time has come. Continued proliferation of computers is
certain. New computer technologies make it practical to provide case
law to the courts, the bar and the public more effectively and less
expensively than from books alone. The present system is tied to
the use of paper as the medium and to dissemination by a small number
of print publishers. The present system impedes the use of new
technologies. The method of citing opinions to volume and page
number is not well-suited for electronic databases.
Through the widespread use of computers, court decisions have
become available much more quickly than in the past. The proposed
citation system would enable parties and the court to immediately,
and permanently cite to a new decision. It would eliminate the
dependence on citing volume and page numbers of printed case reports.
The new system of citation would be both vendor-neutral and
medium-neutral. The new citation system would be applicable to both
books and computer databases. The courts will determine the
citation, not private publishers. However, there will be no
detriment to people using printed reporters. The same citations can
be as easily located in the printed reporters as in the electronic
databases. Both practitioners whose sole source of court opinions is
written reports and practitioners who rely on electronic databases
could easily use the exact same citation system. It would save
considerable time by eventually eliminating the need to locate
parallel cites. It is also more efficient for publishers of
electronic databases because it eliminates the need to edit the
databases to include parallel cites to the printed opinions after the
opinions are published. This will result in lower cost and lower
space requirements for electronic database providers. The time saved
relates to efficiency for the courts, the bar, and the clients that
they serve.
Furthermore, the proposed method of citing to paragraphs rather
than page numbers for pinpoint cites is much more efficient. The
pinpoint citation to a specific paragraph number will facilitate and
shorten the time of counsel and judges (and lower the legal charge to
clients) to read and verify the authority cited in briefs. No longer
will counsel and judges have to read long pages of text to locate the
principle for which a case is cited as authority.
The proposed citation system would be broadly applicable to all
courts. The federal judiciary should take the lead and adopt it at
this time so that state courts follow suit and adopt similar systems.
This would promote a nationwide system of citation that would be
uniform as between computer databases and books, and also among both
federal and state courts. The adoption of the proposal will both
promote a uniform nationwide system and prevent the creation of
differing systems.
The proposed citation system is consistent with the initiatives
to use modem electronic technology to more effectively and cost
efficiently provide governmental services to the public. The
assignment of a sequential number to each opinion issued by the
federal courts is not an expensive task. The inclusion of paragraph
numbers within opinions can be automatically accomplished by the use
of a word processing macro. No additional court personnel would be
required to implement the system.
The implementation of the citation system will permit the
immediate permanent citation of any opinion. The Bluebook's new 16th
edition, which provides guidance for legal citation, includes the
citation format for public domain cases in new rule 10.3.1. Hope
Viner Sanbor, What's New In Blue, Citation Guidelines Change Along
With the Times, A.B.A.J., December 1996 at p. 16.
CONCLUSION
The new form of citation is vendor-neutral and medium-neutral.
It can be used by any judge, lawyer, researcher or publisher. It
does not require any licensing. It can be used by traditional print
media, private computerized legal research services, CD-ROM
publishers and other future formats. It is easily understood and
implemented. For these reasons, the State Bar of Wisconsin urges the
implementation of the ABA citation resolution.
Respectfully submitted,
David Saichek, President, State Bar
of Wisconsin
William J. Mulligan, Attorney for
State Bar of Wisconsin
SUBJECT: West citation system
DATE: Mon, 10 Mar 1997
FROM: Joe Carlton
TO: citation@teo.uscourts.gov
Hello:
I am an attorney and a state legislator from Maine. I recently
chaired the Legislative Committee on Information and Technology,
which concluded that it is in the public interest that all
legislative information be made available on the Internet. I
sponsored a bill requiring that, among other things, all Maine
statutes be so published. Our State Supreme Court has recently
decided to prospectively publish all its opinions on the Internet.
West's monopoly has led to high prices for lawyers and others
who need legal information and made this essential knowledge less
available to the general public. In the case of statutes, I was
amazed to find that all West has to do to obtain our statutes is to
contact our Legislative offices and obtain a disk. It adds a little
value by adding annotations and a (terrible) index, and charges
outrageous prices for this information.
I am all in favor of any proposal to break West's de facto
monopoly on legal information.
Rep. Joseph Carleton
PO Box 369
Wells, Maine 04090
207-646-8341
March 14, 1997
BY E-MAIL
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Re: Comments on Adoption by the Federal Courts of the Form of
Official Citation Recommended by the ABA Resolution on Official
Citations
Dear Sir or Madam:
This letter responds to the Notice of Opportunity to Comment
dated February 12, 1997.
I drafted the attached "Proposed Plan for Citations in the
Virginia Supreme Court and Court of Appeals." The plan acknowledges
two practical issues: first, the procedure for adding to each opinion
suitable reference points usable for citation; second, changes in the
practices of bench and bar in using citations.
Addressing these issues in Virginia is less complicated than in
the federal courts, but the attached document provides a useful basis
for commenting on practical issues likely to face the federal courts.
ADDING PARAGRAPH NUMBERS AND SEQUENCE NUMBERS
This task is straightforward. However, based upon writing and
testing a suitable WordPerfect macro for use by the Clerk of the
Virginia Court of Appeals, two observations are worth noting. First,
it appeared appropriate to have the macro maintain a cross index of
sequence numbers and docket numbers. While a satisfactory paragraph
numbering macro was indeed trivial, additional work was required to
automate construction of a suitable index1. Such an index was
necessary for the clerk to maintain a comprehensive linkage between
docket numbers and sequence numbers. Automation was necessary in
order to minimize (and in this instance largely avoid) additional
workload burdens on the clerk's office.
Second, the task of creating this more complex macro was made
easier by the consistent format of the opinions. Although the judges
are located at a number of different sites throughout the
Commonwealth, all are required to use the same word processing
program (WordPerfect 5.1) and final formatting is accomplished at
the clerk's office in Richmond.
It is unlikely that the federal courts will have the advantage
of this uniformity, even within districts. Consequently, the task of
macro construction will be more difficult. While this difficulty may
remain trivial for simple paragraph numbering, a macro providing
suitable support for the clerk of court will be more difficult. A
clerk may opt for a simpler macro, and elect to use additional staff
to construct an index and keep track of sequence numbers.
Furthermore, federal districts may require some re-engineering
of work flow and practice in order to bring opinions to a common
location -- the clerk of court is the logical place -- for adding
paragraph and sequence numbers when the opinion is issued to the
public. Each such common location can manage its own set of sequence
numbers. Although wide area networks (or perhaps an Internet site)
could make it possible for multiple locations to use a common set of
sequence numbers, we have no need to resort to such techniques in
Virginia.
USING A UNIFORM CITATION IN PRACTICE
The report accompanying the ABA Resolution addresses the various
advantages of having the court include citation information in
opinions at the time of issuance. The report is thoughtful and
thorough, and its discussion need not be repeated here.
The essential consequence of following the ABA recommendation is
that all who read and use court opinions will have a common frame of
reference, regardless of the medium or publisher. Furthermore, to
the extent that the chronology of issuance corresponds to the order
of publication, sequence numbers in accordance with the ABA
recommendation will be usable as a cross reference between different
publications, without the need for a separate index.
However, for a publisher who adds value to the opinions of the
court (for example, by adding head notes) there is no guarantee that
the chronology of issuance will precisely track the order in which
opinions are ready for publication after the value has been added.
Some opinions may take longer to add value than others. This creates
no difficulty for electronic publications, but book volumes may be
ready for publication when some opinions are not ready, and these
opinions would be delayed until a subsequent volume. However, all
the opinions which are available at publication time could be placed
in sequence number order2.
Further, the number of missing opinions may be relatively small,
and those opinions could likely be found in the next volume in
sequence. A place holding reference to that effect could be included
in the prior volume.
This brief analysis serves well enough for print publishers who
handle Virginia cases alone. A single range for the sequence numbers
contained in the volume could be placed on the spine. This may also
work tolerably well for publications whose print volumes include
several states in addition to Virginia, such as West's Southeastern
Reporter. It may even work for a print publisher who combines all
federal appellate courts in one series of volumes, such as West's
Federal Reporter. But certainly for nearly one hundred federal
district courts, each with its own set of sequence numbers, a print
volume attempting to cover them all in a single series (such as
West's Federal Supplement) would likely require a separate index to
locate a case based solely on the Uniform Citation. While the
publisher would likely provide such an index, in order to serve the
marketplace, an additional step would be required for users of that
print publication to locate an opinion3.
Therefore, as a matter of comity within the bar, given the wide
usage of West's print publications, it makes sense to require
parallel citation to West's federal reporters. The ABA Resolution
recommends this. However, the Uniform Citation would provide a
common "Rosetta Stone" enabling easy automation of parallel cites.
The market place will likely respond to ease the burden which such a
parallel cite requirement would place on users of electronic
publications4. I do not think it likely that West's copyright
interests could be leveraged, to place a tax on what should be a very
low price for automation of parallel cites to West's products, since
even if a copyright claim survives analysis the parallel cite
requirement could always be relaxed.
Conclusion
On balance, it seems evident to me that the benefits of adopting
the recommendation of the ABA resolution as the form of official
citation for federal court decisions substantially outweigh both the
modest inconvenience to users of certain print publications, and the
significant but routine steps required to implement the
recommendation efficiently.
Sincerely yours,
Clyde R Christofferson
Oakton, Virginia
enc.
PROPOSED PLAN FOR CITATIONS
IN THE VIRGINIA SUPREME COURT AND COURT OF APPEALS
Summary:
This proposal recommends that the Virginia State Bar implement a
three phase plan leading to adoption of a universal citation system
by the Supreme Court and Court of Appeals.
Background:
Under the auspices of the Virginia Supreme Court, opinions
issued by the Supreme Court and the Court of Appeals are available
electronically on the day of issue or shortly thereafter. This
practice has been in place for a number of years, and is the primary
means of distribution of opinions to publishers and interested
members of the public. Beginning about four years ago, the Legal
Network Committee of the Virginia State Bar included this service as
part of a larger package of state information services provided to
members of the bar.
The computer system through which opinions are made available in
electronic form (called the Law Office and Public Access System, or
LOPAS) is located at the Supreme Court Building on 9th Street in
Richmond. In the Supreme Court, opinions are prepared for
distribution by the Reporter (Kent Sinclair at the University of
Virginia School of Law) and transmitted electronically on the day of
issue to the Supreme Court's computer system. Several days later,
with the addition of headnotes, the Reporter transmits the opinions
to the printer. In the Court of Appeals, judges transmit opinions
electronically to the Clerk in Richmond, who prepares them for
issuance. Each Tuesday morning the opinions are transmitted
electronically to the Supreme Court's computer system, and then to
the publisher.
The electronic transmission to the Supreme Court's computer
system includes three files for each opinion: a word processing file
(in the form used at both courts, currently WordPerfect 5.1), a
version of the opinion in plain text without word processing codes,
and a brief description of the opinion. These three files enable
LOPAS to display a brief description of each opinion and provide
options to download either the word processing file or the text file.
Technical Proposal:
The existing system already in place lays the foundation for a
simple and inexpensive procedure which would add to each opinion
reference points usable for citing opinions, independent of the
method of publication. It appears reasonably straightforward to
automate the mechanical details with a wordprocessing "macro"
(automated sequence of keystrokes), and execute this macro at a
single point in the process prior to distribution. At the Supreme
Court, the appropriate point is with the Reporter, who makes
distribution both to the LOPAS system and to the printer. At the
Court of Appeals, the appropriate point is in the Office of the
Clerk, just prior to electronic transmission to LOPAS and to the
publisher.
The Supreme Court has gone to great lengths with LOPAS to ensure
that the system operates automatically, with a minimum of staff
maintenance. A suitable word processing macro for automating
mechanical details is consistent with this approach. It is
appropriate first to test such a macro, and arrangements for doing
that have already been made with the Clerk of the Court of Appeals.
It should be noted that some of the policy decisions discussed below
may affect how the macro is implemented and executed.
Policy Discussion:
The purpose of adding reference points to opinions as issued is
to enable lawyers and the courts to more efficiently serve their
clients and the public. Providing common reference points, available
to all from the beginning, is a simple concept. While the
foundations are in place for a simple and inexpensive technical
implementation, it is important to lay similar foundations for
general acceptance of this concept among bench and bar.
Some foundations have already been laid. It was not so many
years ago that use of computer technology was uncommon in the law
office and in court administration. Now it is generally recognized
that use of such technology is helpful, if not necessary, in
providing timely services to clients at a reasonable cost and in
administering the judicial system within tight budget constraints.
The report of the ABA Special Committee on Citation Issues
provides further foundation. It is a well thought out and carefully
crafted document that should provide a substantial level of comfort
to those who have not yet considered these matters in depth.
However, the concept will require some change in the day to day
habits of lawyers and judges in citing legal precedent. Book volumes
and pages are traditional. It is significant that the suggested
implementation of the concept uses a format very similar to the
traditional volume and page. A four digit year will be
distinguishable from a three digit volume number. This is followed
by an abbreviation for the court of origin. Instead of a page
number, there will be a sequence number. Internal references
(pinpoint citations) will be to paragraph numbers.
Consequently, finding a cited opinion in a bound volume will
require use of indicia other than volume and page numbers. For
example, a publisher may print the year, court and sequence number in
the outside margin of each page. If the opinions are published in
the same order they are issued, finding an opinion using such
marginal indicia will be similar to using a phone book or an
encyclopedia. The range of sequence numbers contained in a bound
volume could be indicated on the spine. Alternatively, a publisher
may print an index at the front of each volume showing the volume and
page number corresponding to each sequence number.
In principle, the chronological order of the sequence number
will track the order in which opinions are issued and published.
This is the advantage of such sequence numbers over existing docket
numbers. Therefore the phonebook or encyclopedia metaphor should
fairly suggest how the proposed citation concept will contrast with
traditional volume and page references in printed books.
Two points are worth emphasizing. First, this approach to the
practical task of checking cites is different from the traditional
volume and page approach. While not a radical change -- all of us
are familiar with using phonebooks and encyclopedias -- it is
nonetheless a change. Second, we do not have experience with this
approach. While the advantages are evident -- a common reference
good for citing and checking cites regardless of where or how
opinions are published or distributed -- only experience will provide
a suitable level of comfort for many users of traditional print
media.
For these reasons it makes sense to provide for parallel
citation to Virginia Reports and Virginia Court of Appeals Reports,
and perhaps also to West's Southeastern Reporter, until experience
provides an appropriate level of comfort to the general membership of
bench and bar. Parallel pinpoint citation should not be necessary,
given common paragraph numbers within the body of the opinion. The
ABA Committee's report makes this recommendation as well (see
paragraph 37-paragraph 38 of the report).
There may be some burden imposed on alternative publishers by a
requirement for parallel citation. However, at least some of those
publishers are currently including citations -- even internal
pagination -- to Virginia Reports and Virginia Court of Appeals
Reports as those reports are made available. This is being
accomplished manually, at significant expense. By having a common
reference in the electronic opinion made available through LOPAS, it
should be relatively easy for each publisher to automatically create
a cross reference between their own publication and the common
reference. Some enterprising vendor or vendors will then be able to
use the common reference to create a "Rosetta stone" of cross
references to a variety of publications. If this happens, a parallel
citation requirement will prove a lesser burden to alternative
publishers than under current manual practices.
Plan of Action:
The foregoing discussion reflects a single unifying theme for
dealing with the citation issue: comity and professional courtesy. It
makes good sense to consider changing traditional practices if that
will assist those practitioners who find it cost effective to use
opinions published in electronic media. Similarly, it makes good
sense to seek a level of comfort for users of traditional bound
volumes by retaining parallel citation to those volumes. In the same
spirit, it also makes good sense to encourage publishers who serve
the legal profession to participate in a market for cross reference
information, a market whose costs will be dramatically reduced by
including a common reference in opinions made available through
LOPAS. Through all these steps we will better serve our clients and
the public.
Although the proposed approach to citations is simple, even
elegant, it takes traditional practice along a novel path. As with
other matters brought to the court, the bar should take the time to
lay a proper foundation. Care should be taken to avoid a premature
decision by the court. First, test the mechanical details. While it
does not appear that this presents significant cost or difficulty,
this step will serve to familiarize court officers with necessary
procedures and identify any latent practical problems. Second,
educate the bar. Raising the matter with bar leadership around the
Commonwealth will provide means for focusing discussion on comity
and professional courtesy. Bar leadership is likely also to provide a
cross section of views typical of the bar generally and perhaps the
court as well. During this phase it may be helpful to demonstrate
concretely how the additional references will look in the opinions.
This could be accomplished by expanding the mechanical test to
include LOPAS. Third and finally, after bar leadership is satisfied
that the membership and the practice of law in the Commonwealth are
likely to be well served, seek court approval for a rule on
citations.
SENT VIA TELECOPIER ONLY 202-273-1555
March 13, 1997
TO: ADMINISTRATIVE OFFICE OF THE U.S. COURTS
RE: ABA citation resolution
I would like to comment on the issue of paragraph numbering.
Most of the legal assistants for the 15 appellate judges and justices
in New Mexico were, at first, reluctant to change their long-standing
practices involved in preparing judicial opinions. However,
our law librarian developed a simple WordPerfect macro that
automatically inserts paragraph numbers in fine font and in curly
brackets. The legal assistants simply call up this macro when
keying in the opinion and paragraph numbers are automatically part of
the document. It is easy to use and very efficient. I highly
recommend the use of paragraph numbers in judicial opinions.
Should you want a copy of the macro, please let me know and I
will be happy to send you a diskette.
Cordially,
Kathleen Jo Gibson, Chief Clerk
Supreme Court of the State of New
Mexico
Santa Fe, New Mexico
Author: Michael Dodson at Internet
Date: 2/24/97 4:40 PM
Priority: Normal
BCC: CITATION at AO-OCPPO
TO: citation@ao.uscourts.gov at Internet
Subject: ABA Citation Resolution
The federal judiciary seeks written public comments from judges,
court personnel, the bar, and the public as to:
(1) Whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA resolution; and,
The courts should adopt a vendor neutral citation system.
(2) The costs and benefits such a decision would have on the
courts, the bar, and the public.
Such a system will complement the electronic distribution of
opinions through various media including the Internet. I presently
read current Circuit Courts of Appeals decisions via the Internet.
Vendor neutral citations would allow me to save decisions of
significance as they are read and not have to later correlate the
decision as first read to a later retrieved print version.
A neutral citation system will enhance the distribution of
opinions by making them portable. Presently opinions are tied to
a single publisher.
Michael Dodson, General counsel
Joint Legislative Management Committee
The Florida Legislature, URL: http://www.leg.state.fl.us
Tallahassee, Florida 32399-1400
Voice: 904-487-8343; FAX: 904-922-9866
Subject: ABA Resolution on Citations
Date: Wed, 12 Mar 1997 14:53:28 -0800 (PST)
From: Paul Mollica
To: Administrative Office of the United States Courts
To the Administrative Office: The Federal Courts Committee of
the Chicago Council of Lawyers writes to comment on the February 20,
1997 letter requesting public input on the "ABA Resolution on
Citations." Our organization includes hundreds of practitioners,
government attorneys, academics and others interested in the
administration of justice. Our Committee enthusiastically supports
the ABA resolution and urges that it be adopted for the federal
courts. We hope that this citation format will bring an end to the
chaos of competing publishers and services and will level the field
for attorneys who chose to rely on computer-assisted research. It
will also facilitate the use of the U.S. Courts of Appeals' bulletin
boards, making those opinions more easily cited. Thank you for your
consideration. Paul W. Mollica, Chair, Federal Courts Committee,
Chicago Council of Lawyers, 220 South State Street, Suite 800,
Chicago, Illinois 60604, (312) 427-0713.
Subject: Uniform Citation System
Date: Wed, 12 Mar 1997 20:23:04 -0500 (EST)
From: Kpfprobate@aol.com
To: citation@teo.uscourts.gov
Sirs:
The adoption a uniform citation system is long overdue. It will
be a fantastic benefit to all of us, especially in the new "cyber
age". We very strongly urge its adoption.
Judge Advocates Association
The National Bar of Military and
Veteran's Attorneys
Kevin Patrick Flod
President
March 11, 1997
Appellate Court and Circuit Administrative Division
Attention: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Via FAX 202-273-1555
Ladies and Gentlemen:
I am writing to you on behalf of the Monroe County (PA) Bar
Association and its Law Library Committee which administers the only
public law library within a 40 mile radius.
Two years ago we opened the nation's first on-line law library,
with research materials accessible to members of our Bar Association
from their home or office computer. In the course of that project, we
encountered total non-cooperation from West Publishing Company. West
holds a monopoly on publication of Pennsylvania's statutes and its
refusal to let us use their CD's on our new system was almost fatal.
That experience convinced us to support the new ABA endorsed
citation format. I'm familiar with the good work West does on the
editorial end of publishing court decisions; but we don't believe
that service comes close to outweighing the potential benefits of
having decisions that are in the public domain the day they are
issued.
In Monroe County we are engaged in an ambitious campaign to help
lawyers become more efficient through the use of computers; and to
allow them to keep their costs (and fees) at affordable levels.
Computerized legal research is a major component of our program, and
the ABA-endorsed citation system will be an important step forward,
if adopted by the U.S. Judicial Conference.
Very truly yours,
George Royle
cc: Law Library Committee
March 14, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Re: Comments of Public Citizen Litigation Group on
ABA Citation Resolution
Public Citizen Litigation Group hereby submits its comments in
support of the adoption of a standard citation format as recommended
by the American Bar Association.
Public Citizen Litigation Group is a ten attorney public
interest law firm founded in 1972 by Ralph Nader and Alan Morrison.
Litigation Group attorneys handle cases in virtually every federal
circuit, in a number of state courts, and before several federal
agencies. Of particular interest here, our firm has served as
principal counsel in litigation establishing that electronic records,
because of their unique content and characteristics, must be managed
and maintained by federal agencies as records under the Federal
Records Act, and must be made available to the public under the
Freedom of Information Act. /1/
Access to the most recent federal decisions is critical to our
practice. Minimizing the cost of legal research and publications is
also critical to our organization. Our legal services are provided to
individuals and organizations on a pro bono basis and are funded by
donations to Public Citizen, a nonprofit membership organization
dedicated to advocacy on issues of consumer welfare, health and
safety, and open government.
Consequently, our firm has taken advantage of the availability
of federal court decisions in electronic format through the Internet
and other on-line services. Our attorneys regularly download recent
decisions by federal circuit courts, and receive updates on the
decisions of the Supreme Court by electronic mail within a few hours
of the decisions being issued. We also obtain information on district
court dockets on-line, and research state court decisions, statutes,
and rules using noncommercial, government-sponsored on-line services
that make these authorities available in electronic format. The
electronic dissemination of court decisions has made opinions
available much more quickly and at lower costs. Before the courts
began making these materials available on-line, we would not be able
to obtain access to an important decision in another circuit court,
even in a case that we litigated, without incurring substantial costs
for overnight delivery, telecopying, or access to commercial
databases. Moreover, because research using on-line services such as
Lexis [copyright] or Westlaw [copyright] is extremely expensive, we
strive to use these services only after we have exhausted less costly
methods of research. The dissemination off opinions in electronic
format helps us to reduce our use of costly commercial services and,
consequently, makes legal research more efficient.
However, the usefulness of court opinions in electronic form,
whether disseminated by courts or by commercial services, is
currently handicapped by the lack of a standardized citation system
for electronic documents. As the report accompanying the ABA
resolution points out, the current citation system is tied to
publications in paper format and is not compatible with effective
citation of electronic documents. Moreover, page references are
virtually useless for electronic documents. These problems will
become more acute as lawyers and the public increasingly conduct
research and read materials using computers. Consequently, it is in
the interest of the courts, the bar, and the public for the courts to
adopt a universal standard for citation that can be used without
regard to the format in which the reader is viewing the opinion.
We believe that the benefits of a universal citation system to
everyone will be substantial. Even where only paper documents are
concerned, the absence of a standard citation system sometimes causes
needless expense and duplication, particularly in specialized areas
of the law, because members of the bar may not be using the same
publication as the court. /2/ The growing use of both electronic and
paper formats underscores the need for a universal citation system
that will provide an adequate means to locate a decision, regardless
of the format or publication that the reader has available. Moreover,
adoption of a universal format by the courts will encourage the
growth of more competition in the publication and dissemination of
judicial decisions in all formats.
The cost to the courts of adopting the ABA's proposed citation
system will be minimal. The sequential numbering of decisions as they
are issued is easily accomplished, and the sequential numbering of
paragraphs required by the proposal can be done automatically using
the word processing software already employed by the federal courts.
Indeed, we know from experience that such numbering is not difficult.
In recent years, we have sometimes been ordered to submit copies of
documents to federal courts in electronic format and, as part
preparing these submissions, have been required to modify the
document in a manner that is substantially equivalent to the
sequential numbering contemplated by the ABA proposal. Although
neither our computer equipment nor our software is sophisticated by
current standards, we found that making these modifications is not
difficult and can be performed automatically. Moreover, once the
programming for formatting documents to comply with the proposed
format is created, this programming can be used to number the
paragraphs for subsequent opinions without imposing any additional
burden on the court or its administrative staff.
In short, it is clear that court opinions are now used in both
electronic and paper formats, and the use of electronic formats will
continue to grow. The citation systems currently in use are not
designed to address this situation, and a universal citation system
designed to promote the use of both formats will benefit the courts,
the bar, and the public by increasing access to judicial opinions and
reducing costs. The ABA has proposed a thoughtful, efficient, and
practical method for citation that is designed to be independent of
format, is superior to existing systems, and involves virtually no
incremental costs. We urge that the Judicial Conference adopt the
proposed citation system and require all case authorities to be cited
in accordance with the ABA proposal. The requirement to use this
universal citation should be phased-in over a reasonable period of
time to permit courts and the bar to become familiar with the new
system.
Respectfully submitted,
Michael E. Tankersley
Alan B. Morrison
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000
FOOTNOTES
/1/ See Armstrong v. Executive Office of the President, 1 F.3d
1274 (D.C. Cir. 1993).
/2/ For example, the Rules for the Superior Court of the
District of Columbia require that citations to decisions of the
United States Court of Appeals for the District of Columbia Circuit
include both the volume and page number of the decision in U.S. App.
D.C. and the Federal Reporter. The libraries of many practitioners,
however, contain only the Federal Reporter, and therefore the members
of the bar must make a special effort to include parallel citations
for the version of the decision in U.S. App. D.C.
END OF FOOTNOTES
Subject:
Date: Thu, 13 Mar 1997 11:12:00 -0500 0
From: "Laura N. Gasaway"
To: citation@teo.uscourts.gov
JUDICIAL CONFERENCE SHOULD ADOPT THE CITATION FORM
RECOMMENDED BY THE ABA
In my almost 30 years as a law librarian, professor and teacher
of legal research, I have become increasingly concerned about the
system of citations used in this country. I believe it is extremely
important to have public domain citations for federal court
decisions. It has long been a concern that West Publishing Company
claims copyright in citations for federal court reports. Since only
West publishes all of the Federal District Court opinions, it is a de
facto official publication although not published by the Government
Printing Office. In order to cite to those opinions, one must use the
West citation, including pinpoint pagination. Claiming proprietary
rights in those citations is tantamount to removing from the public
something that the public has funded -- the judges, their staffs and
the writing of those opinions. Wests compilation is cophrightable,
but their citations should be public domain.
The proposed citation form is both format and vendor neutral.
Only the largest law libraries will be able to maintain subscriptions
to various editions of court reports published by different
publishers and in all available formats. Practicing lawyers are much
more likely to have access to only one source, and the ABA proposal
will end the problems of parallel citations, etc.
Further, having paragraphs numbered will benefit all legal
researchers. Even with headnotes, one may have to review several
pages to locate the exact material needed. Numbering the paragraphs
will permit indexing to smaller portions of documents which is in
itself valuable for researchers.
COSTS AND BENEFITS ON COURTS, THE BAR, THE PUBLIC
I believe it is essential that citations be restored to the
public domain. It will increase competition among publishers since
more of them will be able to enter the market without having to pay a
license fee for what should be public domain citation data. This will
benefit the public by increasing the number of published sources for
materials to appeal to different types of users; publishers will be
encouraged to be more competitive on the basis of price as well as on
the basis of special features their court reports will offer. Thus,
the public should care deeply about this matter.
Additionally, federal proposed system of citation creates the
uniformity needed since neither the format of the material nor the
publisher will matter.
* * *
Laura N. Gasaway Phone: 919-962-1049
Director of the Law Library &
Professor of Law Fax: 919-962-1193
CB # 3385
University of North Carolina e-mail: laura_gasaway@unc.edu
Chapel Hill, NC 27599
March 12, 1997
ABA Citation Resolution
Administrative Office of the United States Courts
Thurgood Marshall Federal Judicial Building
#1 Columbus Circle
Suite 4-512
Washington, D.C. 20002
(I was told on the telephone that the above was the correct address
for Federal Express submissions)
Attention: Joan Countryman
In response to the February 12, 1997 Federal Register request
for comments concerning the ABA Citation Resolution I would like to
submit the enclosed article (10 copies included) for your
consideration. The article was published in Volume 83, No. 2 of the
California Law Review and is entitled "On Not Throwing Out The Baby:
Planning the Future of Legal Information." In the article I state
my views on the question of using vendor neutral citation. Rather
than restate the article's points let me just summarize the points
that I think the committee should consider.
First, the vast majority of individuals who need access to
federal judicial opinions do not have access to electronic
information, and any plan should contemplate continued paper
products.
Second, the need for some central repository of the edited,
quality controlled information remains. For many years the courts
have relied on private publishers to serve this function. It is
neither simple nor inexpensive to provide the editing and quality
control necessary to accomplish this task. Revisions to opinions,
changes to opinions etc. present genuine challenges.
Third, if there is only a paragraph citation required, it may be
impossible to ascertain what information the person using the
citation was looking at when he or she read it.
Fourth, the current system of distributing information works
very well. Before it is modified extensively, there must be pressing
reasons to do so. Many small publishers are innovating right now.
When new and better information systems develop, they will pull
citation systems to follow them. It is dangerous to mandate a new
citation system which depends on non-existent tools. Let the market
sort this out as it always has in the past.
Yours sincerely,
Robert C. Berring
Walter Perry Johnson
Professor of Law and Law Librarian
Author : deselden@orr-reno.com at Internet
Date : 3/5/97 4:10 PM
Priority: Normal
Receipt Requested
BCC : CITATION at AO-OCPPO
TO : citation@ao.uscourts.gov at Internet
Subject : Uniform citation system
Dear Ms. Countryman:
I would like to voice my support for the adoption of the ABA-
endorsed new citation system that would help to end the West Group
Publishing monopoly over federal case reporters. I believe that the
adoption of this new citation system will allow other publishers to
publish competing reporters creating new competition and lowering the
cost of purchasing published sets of legal opinions. We can all
benefit from the benefits of lower cost access to the law. I think
that public and municipal libraries with shrinking budgets and
limited resources will benefit the most.
David Selden, Research Specialist/Law Librarian
Orr & Reno P.A.
POB 3550
concord, NH 03302-3550
603-224-2381
fax 603-224-2318
e-mail deselden@orr-reno.com
Subject: Public Domain Legal Citations
Date: Mon, 10 Mar 1997 10:57:34 -0500
From: Barbara Duval
To: citation@teo.uscourts.gov
Please give serious consideration to adopting the court citation
format advanced by the ABA as the official citation. This format is
clear and precise. With such a format, cases could be reported in
books, on CDs, online, or on the Internet quickly, without having to
go through the hands of a commercial publisher (e.g. West Group). It
makes little sense for the public to pay for state and federal
courts, and their decisions, but have no way of researching or citing
to them without resorting to a commerical publisher. With a vendor
neutral format, legal research would be less expensive for all of us.
Thank you very much.
Sincerely,
Barbara Duval, Librarian
Smith Helms Mulliss & Moore (but speaking only for myself)
Charlotte, NC
Subject: Comment on proposed citation rules -- Attn: Joan Countryman
Date: Tue, 04 Mar 1997 12:48:09 -0600
From: Bryan Carson
To: citation@teo.uscourts.gov
Dear Ms. Countryman:
My name is Bryan M. Carson. I am a lawyer licensed in Ohio and
Kentucky, and am also a librarian employed at Hamline University
School of Law in St Paul, Minnesota. I am writing to comment on the
proposed change of citation format for the Federal courts. I urge the
Judicial Conference to adopt the publisher-neutral citation format
proposed by the American Bar Association.
The ability to use parallel citations from a variety of sources
would foster competition and would help to end the monopoly of legal
publishers that currently exists. Many cases are made available now
on CD-ROMs or through online legal research services, including the
Internet. However, lawyers cannot cite to these sources, making them
useless for research. At this time, the only way that lawyers can
cite to a case in the Federal court system is to either have a copy
of a reporter published by West, or else have access to the reporters
through Westlaw or Lexis.
At this time, all but one circuit has cases available on the
Internet. This is seen as a tool of democracy that enhances the
public's ability to conduct legal research. However, these cases can
not currently be cited in Federal court, despite the fact that they
may have been posted by that very same court. This is not only a
cause of great injustice, but also helps to maintain the monopoly of
the West publishing company.
There would be no difficulties with the Federal judiciary in
making this change, since the proposed change will have all cases
cited by stating the year, a designator of the court, and the
sequential number of the decision. This system would be very easy for
the judges to adopt, and would allow the court to easily determine
when the case came out and from which court. Where reference is to
specific material within the decision, the paragraph number at which
that material appears will be used to pinpoint the information, will
allow more specific locating of references than was previously
available.
The costs of adopting such a system would be negligible, and
would mainly involve the publishing of notices in the Federal
Register to make the practicing Bar aware of these changes. The
benefits, however, would be tremendous. This is true both for the
general public and for the practicing Bar. In recent years, the
average price increase of the Federal case reporters published by
West Publishing has been 9-10 percent per year. Being able to cite to
another case reporter would allow the practitioner to buy competing
products that are not uncitable, and hence useless. This would foster
an atmosphere of competition, and would help to keep the prices down.
This would also benefit the Federal Judiciary, since the lowering or
stabilizing of prices would allow budgetary savings for the courts.
I therefore urge the Judicial Conference to adopt the publisher-
neutral citation format that has been proposed by the American Bar
Association. If you have any questions, please feel free to contact
me at the address below. Thank you.
Bryan M. Carson, J.D., M.I.L.S.
Reference/Computer Services Librarian
Hamline University Law Library
1536 Hewitt Avenue
St Paul, Minnesota 55104
612-641-2063
bcarson@gw.hamline.edu
The preceding comments are my own and do not necessary reflect the
opinions of my employer. All original content Copyright 1997 Bryan M.
Carson. All rights reserved.
Subject: Comments re: Public Domain Legal Citations
Date: Fri, 14 Mar 1997 16:13:12 -0500(EST)
From: Betsy Sandison
To: citation@teo.uscourts.gov
CC: Betsy Sandison
Betsy Sandison
Director
Baltimore County Circuit Court
Law Library
401 Bosley Avenue
Towson, MD 21204
March 14, 1997
Dear Members of the Judicial Conference of the United States'
Committee on Automation and Technology:
I am writing to comment on the ABA Citation Resolution. As the
Director of a library that is the only public library in Baltimore
County, I strongly endorse the adoption of the uniform citation
system proposed by the ABA. If federal courts adopt a public domain
citation format for decisions, these decisions could be readily
disseminated in a citeable format on the Internet. As a public law
library, we cannot afford subscriptions to online services such as
Westlaw and Lexis that would provide our patrons with immediate
access to cases not yet in the advance sheets. We do, however, have
Internet access that we use to obtain public domain information, such
as legislative information, for the public. Court decisions are
public domain materials and as such should not only be available to
the public at no or little cost, but should also be available in a
format that is useful, citeable that is! Members of the public should
not be dependent upon West advance sheets to access or cite recent
cases. A public domain citation format would facilitate the
electronic publishing of cases and thus would enable patrons to
perform online searches to obtain cases and cite to those cases in
legal pleadings.
I agree that the headnotes, syllabi, and key numbers are "value
added" features and should be copyrightable. However, the idea of a
page numbering system being worthy of copyright protection is absurd!
Court decisions belong in the public domain and should be released in
a format that will reach the greatest percentage of U.S. citizenry.
My library will most certainly continue to purchase the West
Reporters for the value added features, however, I can assure you
that we will never be able to provide our patrons with commercial
online access to court decisions. Even in a relatively affluent
county, $2.00-4.00 a minute for online access is out of our reach.
You can imagine the impossibility of poorer counties providing
access!
For the sake of the public, I urge you to adopt the ABA's Public
Domain Citation Proposal. It is un-American and undemocratic to allow
a corporate entity limit the dissemination of public information.
I can be reached at 410-887-3086 if you require further
information. Thank you for your time and consideration.
Sincerely,
Betsy Sandison
Director, Baltimore County Circuit Court Law Library
Author : Frank Cox at Internet
Date : 3/11/ 0 12:59 PM
Priority: Normal
BCC : citation at AO-OCPPO
TO : citation@ao.uscourts.gov at Internet
CC : fcox@marin.org at Internet
Subject : Public domain citation system
Re: Public domain citation system
I understand the The United States Judicial Conference is
contemplating an on-line public domain citation system either to
complement or replace West's hard-copy-based citation system.
Briefly, I have been a Public Defender attorney for almost 30
years, working for two counties. I am recognized as something of
expert in lawyer's use of computers & automated legal research,
having given training programs on computers for lawyers almost
annually since 1986, in California, New Mexico, and Canada.
Although my County (with my continual urging), has much better
than average in-office PC support (including working 386SX 16 mhz
machines, some 486s, and a for a few of us Pentium PCs), in this
office, we do not have access to books or disks with Federal Reporter
decisions, or Fed. Supp. decisions.
The County Law library used to be in this building, but it has
moved to a building some 10-15 minutes away from us, with limited
library hours.
In most PD offices (and I do know about PD offices), the
situation is much worse. In many public defender offices, there are
one or two old PCs in the office, or none at all. Very few defender
offices have federal law books available to them easily. We have no
federal grants, or State grants, to defend the Victims-of the day, as
prosecutors do, and we every year grovel before local Boards of
Supervisors for core funding for staff or book resources. At these
annual budget events, in many counties, defender offices must compete
with "low bidding" low rent private defender groups who have less
resources than defenders.
A few of us have come to use the Internet for core research. I
will be lecturing on this use of the Internet (again) in San
Francisco on March 22 for the California Public Defender's
Association.
Whatever you can do to loosen the stranglehold of monopolistic
book-sellers on the law, and provide it to us who don't have access
to the law today, would be appreciated.
Not only would defenders learn, and cite, the law, but many
persons of all type might could, in theory, come to know and perhaps
follow the law, including judges.
As I think about it, this might be a good thing. Will you help
us have access to the law?
Frank Cox
Chief Deputy Public Defender, Marin County
Hall of Justice, Rm 139
San Rafael, CA 94903
voice: 415 499 6340
fax: 415 499 6898
fcox@marin.org
http://midas.co.marin.ca.us/mc/pd/index.html
Subject: Vendor Neutral Citations
Date: Fri, 14 Mar 1997 18:52:46 EST
From: bbayer@juno.com (Barry J Bayer)
To: citation@teo.uscourts.gov
March 14, 1997
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544.
Via Email: citation@ao.uscourts.gov
Re: Vendor Neutral Citations
Greetings:
Please take this e-mail as my comments to the question of
whether the Federal Courts should adopt something similar to that
system of Vendor Neutral Citations suggested by the American Bar
Association. I make these comments based both on my experience
through 28 years of practice, and as an author of a syndicated column
specializing in computer based and other high technology products for
lawyers.
The current system of vendor-based case citations has served us
well for more than a century, but it does have acknowledged problems:
1. Many cases have at least two permanent citations and may have
four or more temporary citations over its lifetime. A decision of the
United States Supreme Court, for example, will have an initial docket
number, a number on Westlaw, another on Lexis and perhaps a page
citation in BNA's US Law Week. The same opinion will have permanent
citations to the official reports as well as the West Supreme Court
(SupCt) citation, and, unless it has been rendered moot because of
the recent purchase of West by Thompson Publishing, the co-called
Lawyer's Edition (L. Ed). The typical state court case will have
five possible citations --- a docket number, an official reporter, a
West reporter, WestLaw and Lexis.
2. West Group claims a copyright in the point in each decision,
as reported in a West reporter, where the opinion moves from one page
to the next. This makes it inconvenient for users who do not purchase
opinions from West to follow jump citations for quotations, so that
the reader of a brief may be directed to the specific point in the
opinion from which a quotation is taken or where the point of law in
question is discussed.
These problems may be easily solved by following the two major
points in the ABA Resolution:
1. Each decision should have a permanent citation, assigned by
the issuing Court, at the time the decision is issued.
2. Each decision should be published by the issuing Court with
numbered paragraphs.
The first recommendation solves the multiple citation problem.
Although any lawyer might be permitted to use as many parallel
citations to the same case as she wished, the official citation would
be mandatory. /1/ And jump cites would no longer be made to specific
pages, but, instead, to the official number of the paragraph in which
the cited information is found. Obviously, a lawyer could parallel
cite to West pages or anyone else's pages, but citation to paragraph
numbers would be mandatory.
Thus the citation to the 71st Paragraph of the 15th decision
issued by the United States Supreme Court in 1997 would be:
1997 USSCT 15 @ 71. /2/
This citation format is easy to understand, unambiguous, and
useful to any person with a copy of the case as published by any
vendor in any medium. This citation differs slightly from the ABA
recommendation which does not use the @ symbol to set off the
paragraph number and which calls for a parallel citation in addition,
but the idea is the same. This assumes, of course, that all vendors
in whatever medium would publish the official citation and paragraph
numbers, but I have little doubt that this assumption would prove
correct. In addition to being an insult to the issuing court, failure
of one publisher to include the official citation and official
paragraph numbers would be a detriment to sales.
In fact, the system described by the American Bar Association is
so easy to use and understand, and so inexpensive to implement --- we
assume that a simple word processor auto-number macro would number
decision paragraphs automatically --- that we cannot figure out how
anyone but a publisher with a vested monetary interest in the current
hodge podge could possible be against it. Yet some are.
In 1995, well before the growth of cases easily available on the
Internet, in a column that appeared in Law Office Computing magazine,
I wrote that:
"I'd never heard of [the Association of Reporters of Judicial
Decisions] but some skulking around disclosed an August 5, 1994
"Policy Statement" that notes:
"The goal of each member is to provide easy public access to
opinions at reasonable cost."
"Well, that's sounds good. I'm all in favor of access to
opinions at reasonable cost.
"But the Association continues
"The members believe that, as to those jurisdictions that
publish their opinions in official reports, creation of a vendor-
neutral form of electronic citation is unnecessary. There is no
evidence that citation to the present official reports does not
adequately serve the needs of all users. Pagination in those reports
is now easily accessible and not copyrighted."
"Electronic citation unnecessary? No evidence that the current
system doesn't "adequately serve the needs of all users."? Now wait
just a second. A couple of weeks ago I ordered a Lexis "CasePull" on
Lexis Counsel Connect. (The cost is $1 as of this writing, but it
will probably be at its $4 permanent cost by the time you get it into
hand.) The only citation I had was 1994 WL something or other.
"Sorry. Lexis no comprende." Or a case retrieved from the
inexpensive, no frills Lawyers Legal Research system. Alas, the only
citation was to the slip opinion.
"Well I don't know where those guys are working, but I knew that
the current system of citation doesn't serve my needs. So I called a
key Committee member, and told him of my problems with his system.
"Don't worry," he said. "If you want to cite that case in a brief,
just put down the slip opinion number; the Judge will be able to find
the case, and will fill in the reporter citation for you." He must
have some really nice Judges where he practices law, but I somehow
suspect that slip opinion citations for cases already in NE2d just
wouldn't fly with the very nice judges in Chicago."
I never did determine why public servants involved in the
important job of presenting the decisions rendered by our Courts felt
that the current system was adequate for our purposes. But I remain
convinced today, as I was two years ago, that the Vendor Neutral
Citation is an idea whose time has come, and that particularly with
the substantial consolidation in the legal publishing industry upon
purchase of West Publishing Company by the Thomson publishing
interests, it is vital that we encourage competition in the field,
and lower the bars to entry to ensure a free market. It is necessary
for the courts to take control of its own work product, and not wait
for some commercial publisher to dictate how that work product will
be cited to future courts. /3/
The only substantial argument that I have heard against Vendor
Neutral Citation is that it would be too expensive to re-cite, add
paragraph numbering and republish almost 250 years of United States
Jurisprudence. And, of course, that argument may be valid. It would
cost much less, however, to re-cite, reformat and republish the last
10 years of case, being the cases most likely to be cited in briefs
and opinions today. And if that be deemed too costly, it would cost
nothing to begin the new citation system with the first cases
published in 1997 or even 1998.
While all of the benefits of such a prospective system might not
be obvious in the limited number of years that I may have left at the
Bar, I have no doubt that lawyers of the next millennium will look
praise your foresight in adopting at least a prospective system, as
they look upon the curious system of legal citation that we use today
with the same combined reverence and amusement with which we view
Deeds with wax impression seals, actions pleaded in assumpsit, and
prayers for relief that demand that the plaintiff "go without day."
I believe that vendor neutral citation is a requirement for the
sort of country that we are and wish to remain. If we are to remain a
democracy, a nation of law, that law must be available to the
citizenry. A uniform system of vendor neutral citations could and
should be implement in the federal courts at the earliest
opportunity. We suspect that most state courts would follow. This can
only have the result of making judicial opinions easier to find, and
available at lower cost, making this portion of "the law" more easily
accessible for all to read and ponder.
Very Truly Yours,
/s/ Barry D Bayer
Attorney at Law
Editor in Chief / Law Office
Technology Review
2710 West 183rd Street
P O Box 2577
Homewood, IL 60430
708-957-3322 (Voice)
708-957-3337 (Fax)
bbayer@counsel.com
FOOTNOTES
/1/ It has been noted in other discussions that with page
limitations on briefs so common, today, a required official citation
will have the effect of eliminating parallel cites that do little but
take up precious space.
/2/ The USSCT designation is, of course, an example only, may
not be the one ultimately chosen. We assume that the Judicial
Conference, itself, would select the identifiers for all federal
courts. USCCT-1 and USCCT-7 might identify decisions from the United
States Court of Appeals for the First Circuit and for the Seventh
Circuit, respectively. USDND-IL might identify the United States
District Court for the Northern District of Illinois.
/3/ The argument is sometimes made that West Group offers great
assistance to the courts by correcting such things as grammar,
spelling, citations, quotations and even occasionally revising a
particularly awkward phrase --- all with the approval of the issuing
Court, of course. And that if Vendor Neutral Citation were implement,
opening opinion publishing to just anyone, West would have less
incentive to supply its services in cleaning up such opinions. I
assume that the Courts are as capable of copy reading and fact
checking as West; to the extent that West is now supplying such
functions, if they are, this add all the more reason that the Courts
should take back control of judicial work product.
END OF FOOTNOTES
Barry D Bayer
Law Office Technology Review
P O Box 2577 - 2711 West 183rd Street
Homewood, IL 60430
708-957-3322 (Voice) 708-957-3337 (Fax)
Author : jimfitch@community.net at ~Internet
Date : 3/12/97 08:18 AM
Priority: Normal
BCC : CITATION at AO-OCPPO
TO : citation@ao.uscourts.gov at Internet
Subject : Public Domain Citation System
I am a deputy public defender in Solano County, California. I am
absolutely in favor of a public domain citation system. Our library
has no federal books at all. Attorneys in our Vallejo office must
drive 25 minutes to the county law library in Fairfield to do any
federal research. No matter how much groveling we do for the Board of
Supervisors, we have been unable to get WestLaw, LawDesk,
Lexis/Nexis, or any similar computer aided research. We do not have
enough computers even for the most basic word processing needs. The
bulk of our attorneys have their own personal computers, and most of
them have internet access. Free access to federal materials over the
internet would be of tremendous value to our office. I would like to
see such a system ultimately extended to state materials as well. I
cannot overstate my enthusiasm for such a thing.
James Fitch
Chief Deputy Public Defender
Solano County, CA
707-421-6710
Subject: Citation of Law Reports
Date: Thu, 13 Mar 1997 14:35:08 +0000 (GMT)
From: Roger Horne
To: citation@teo.uscourts.gov
Dear Sir
I read your request for comments on the ABA's proposed scheme
for citation of law reports with interest.
I am a barrister in practice in London and a member of the Bar
Council's committee which deals with IT and also of a committee
consisting of various members of the legal profession (including the
judiciary) known as ITAC (IT and the Courts). As a result I have
developed a keen interest in the free dissemination of legal source
material including statutes and law reports.
As I am sure you know, in the past the view was taken that all
statutes and judgments in the United Kingdom were subject to Crown
Copyright and the Crown refused to let any one else publish them.
As a result of coniderable pressure this has now started to
change and statutes (since the beginning of 1996), statutory
instruments (since the beginning of 1997) and House of Lords
judgments (since 15th November 1996) have all been published on the
internet. There are still contractual reasons why the decisions of
lower courts are not made available on the internet but I believe
that will change over the next few years.
The House of Lords judgments are put on the internet in HTML
format and as a result they look very attractive. There is, however,
nothing in them which would enable an outsider to link to them. By
that I mean that it is not possible to "jump" to a particular part of
the report.
The ABA report suggests that the paragraphs of all judgments
should be numbered. I have tried this out with one of the House of
Lords reports using a method which gives each paragraph number a
unique hypertext link and was startled to find how useful it was. I
have used this amended version of the report to illustrate a paper
which I have called "the Future of Law Reporting".
I have (with the permission of HMSO as copyright owner of the
report) put a first draft of this paper on my Web site at
http://www.number7.demon.co.uk/ I think that some of the points which
I make are relevant to your enquiry.
I am not qualified to comment on the remainder of the ABA's
proposals but I would support the recommendation for the numbering of
paragraphs.
Roger Horne
--
Roger Horne
11 New Square, Lincoln's Inn, London WC2A 3QB
mailto:roger@number7.demon.co.uk
http://www.number7.demon.co.uk/
Author : "Gary E. Johnson" at Internet
Date : 3/13/ 0 01:50 PM
Priority: Normal
BCC : citation at AO-OCPPO
TO : citation@ao.uscourts.gov at ~Internet
Subject: Cites Public
I am a disabled and retired liscensed attorney in a remote area
of Kentucky. I struggle financially and physically to stay current on
a wide range of legal issues, including staying current with my
continuing legal education requirements. I can't afford to purchase
legal opinions for my computer, and I am physically incapable of
trips to a faraway University law library. I had to scrape to afford
the machine and internet access. I believe all public information
should be freely and easily accessed, including court opinions, and
especially for handicapped American citizens like me. Make them
public, please. GEJ
Author: "Peter D. Junger"
Date: 3/12/03:18 pm
Priority: Normal
BCC: Citation at AO-OCPPO
TO: citation@ao.uscourts.gov at ~ Internet
Subject: Support for ABA Citation Resolution
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Sirs:
I am a professor of law at Case Western Reserve University in
Cleveland, Ohio. I am writing to express my strong support for the
form of official citation for court decisions recommended by the ABA
Citation Resolution.
I am one of those fortunate ones who have unlimited access to
the Lexis and Westlaw online databases of judicial opinions and I
also have access to a quite extensive legal library at CWRU Law
School, so I am not personally at a disadvantage because of lack of
access to the law. On the other hand, I fear that my access to those
legal databases has been given to me -- or, rather, made available to
the Law School faculty and students at a substantial price to the Law
School, even if that price is greatly discounted -- in the hope that
I will, like a dope peddler giving away samples, get my students
addicted to expensive ways of doing legal research.
It may be hard for a judge or a law professor, with "free"
access to these legal data bases, to understand how costly -- in
both time and money -- our present system of legal citations is to
solo practitioners and small firms, and to members of the public,
when each citation must refer to a page number that a legal publisher
claims as its private property. I do know, however, that many
smaller law firms complain bitterly that we are teaching our students
expensive research habits that makes them too costly to hire when
they finally graduate and go looking for a job. And I am aware that
much legal research that is done is done today is done badly, at
least in part because the researchers do not have inexpensive access
to the law reports.
It may also be hard for lawyers, judges, and law professors to
understand how much desire there is on the part of the public for
access to judicial opinions. But as a law teacher who is an active
participant in a fair number of internet discussion groups on
subjects as divergent as Medieval History, Free Speech, and Buddhism,
it is my experience that there is a large demand by members of the
public for access to judicial opinions that cannot easily be
satisfied under our present system.
Many of the problems that I am discussing here could be
alleviated if judicial opinions, and especially those of our most
important courts, were available on inexpensive CDroms or for free on
the World wide Web. And such resources are increasingly becoming
available. (For an example of some the legal databases that are
available on the World Wide Web you might want to look at the
following URL on my web server: .) But, these new resources will never be
satisfactory so long as they cannot contain the full information that
is needed if one is to cite a portion of one the opinions that they
contain.
All that is necessary to resolve this difficulty, at least for
future opinions, is the adoption of the ABA's proposed citation
system.
It would seem that the cost of adopting the ABA's proposal would
be minimal. It should be easy to write software programs that could
number paragraphs automatically, so that the process would be
transparent to those judges who do not want themselves or their
clerks to be troubled by such matters. I certainly am not a serious
programmer, but I think that I could write a perl script that would
do that.
And the benefits would be substantial, not only by making the
sources of the law available to the public, but also by freeing the
text of judicial opinions from the constraints imposed upon them by
the technology of the traditional printing press. Paragraphs are
natural divisions of a text; pages, on the other hand, are arbitrary
divisions imposed by the limitations of a particular press. In the
coming age, when more and more information, including judicial
opinions, will be stored in electronic form and only printed out when
there is a demand, something like the ABA proposal will be an
absolute necessity. And the sooner the proposal is adopted the
better off we will all be.
Respectfully submitted,
Peter D. Junger
Professor of Law
Author: "Susan M. Kornfield"
Date: 3/13
Priority: Normal
BCC: citation at AO-OCPPO
TO: unknown
Subject: ABA Citation Resolution
I am an attorney, the Chair of my law firm's Intellectual
Property Practice Group, a professor of copyright law at the
University of Michigan Law School, and lead counsel in a copyright
case of national significance currently before the U.S. Supreme Court
on a petition for writ of certiorari. I am writing in support of
the long, long overdue resolution to adopt a non-proprietary form of
citation to judicial decisions.
It is bad public policy to permit the acquisition of a monopoly
as to the manner in which a public document is referenced. The
judicial decisions that have granted such protection under the guise
of copyright are flawed analytically and erroneous in their holdings.
Judicial decisions are in the public domain, under both federal and
state law. Granting a proprietary position in the form of the
citation essentially removes them from the public domain, and is a
violation of public policy and of copyright law.
In addition to the harm of limiting public access to these
important documents, the prices charged by West and Mead Data, and
the practices relating to access to those documents, are out of
control and clearly monopolistic. As such, they harm competition
within that market and the market for providing judicial decisions in
a variety of formats.
I urge the committee, in the strongest terms, to adopt a
nonproprietary citation format.
Susan M. Kornfield
Chair, Intellectual Property Practice Group
Bodman, Longley & Dahling LLP
110 Miller, Suite 300
Ann Arbor, Michigan 48104
(313) 761-3780
Visiting Professor of Copyright Law,
University of Michigan Law School
Ann Arbor, Michigan
Author: aleonard@nyls.edu (Arthur Leonard - Faculty) at Internet
Date: 3/13
Priority: Normal
BCC: citation at AO-OCPPO
TO: citation@ao.uscourts.gov at ~Internet
Subject: Comment on ABA Citation Format
I am writing to support the proposal that the federal courts
adopt the ABA-endorsed citation format, as per the notice published
in the Federal Register on 2/21/97.
It is rather odd, actually, that a private publishing company
should hold a monopoly on the official court decisions of the lower
federal courts. The uniform system endorsed by the ABA would make it
easier to cite cases from different jurisdictions, and would not
impose a significant burden on the courts. Indeed, after a brief
initial period of learning the new system, it will become second-
nature, just as all new systems become second nature, and within a
few years the new law clerks will have all graduated from law school
having learned the new system, so the period of transition should be
relatively brief.
Most significantly, in light of the largescale shift to on-line
research by lawyers, law students, and legal academics, a system that
assigns identifying numbers immediately to new cases and numbers
paragraphs of opinions will increase the ease of research and
citation, and leave the way open to more competition in collecting
and reporting decisions.
I urge you to accept the proposal.
Arthur S. Leonard
Arthur S. Leonard, Professor, New York Law School
ALeonard@nyls.edu or ASLeonard@aol.com
212-431-2156
Subject: Court Opinions in the public domain
Date: Thu, 13 Mar 1997 08:47:10 -0500
From: "Linda Laub"
To:
I wholeheartedly agree that West has a monopoly on this. I am a
government lawyer whose office works with a very small budget. Isn't
it a shame that in this day and age of the Internet, it can still
take a week to get a recently published opinion simply because our
office can not afford even the discounted government attorney's rate
for on-line access!
Author: Susan Lewis-Somers at Internet
Date: 3/13/0 10:27 AM
Priority: Normal
BCC: citation at AO-OCPPO
TO: ABA Citation Resolution at
Internet
Subject: Adopt ABA Public Domain Citations to Court Opinions
Honorable members of the Committee on Automation and Technology:
I am an academic law librarian and an attorney who urges that
you adopt the ABA recommendation for a public domain citation system
for federal court opinions.
PUBLIC DOMAIN CITATIONS WOULD ALLOW LITIGANTS AN EQUAL
OPPORTUNITY TO CITE TO FEDERAL CASE LAW
While the Willamette University Law Library's primary patrons
are our students and faculty, we also serve members of the bar and
the public who come to the law library to conduct legal research.
These public researchers, many of whom are sole or small firm
practitioners and pro se litigants, have few means to use the costly
Lexis and Westlaw services to find recent federal cases not yet
published in paper. Other researchers, located in rural areas like
Eastern Oregon, may not have access to a law library within a
convenient driving distance and, thus, may not have ready access to
traditional federal case reporters. However, all of these researchers
are able to find federal case law on the Internet.
But they are unable to include pinpoint citations to relevant
pages in these Internet-published cases in their court filings
because Internet-published cases may not include references to the
West-copyrighted pagination in its federal reporters. Yet, in most
cases, it is the pages in these West reporters that must be cited
under your current rules.
A public domain citation system, with paragraph numbering for
pinpoint citations independent of the West pagination, would allow
these small attorneys and pro se litigants to cite to federal court
decisions found on the Internet, as those who use the West reporters
or Lexis and Westlaw (with their references to West pagination) may
do now.
PUBLIC DOMAIN CITATIONS WOULD BRING PUBLISHER COMPETITION, WHICH
WOULD ENSURE LOWER-COST FEDERAL CASE LAW
Many of the sole practitioners and smaller law firms in this
community simply cannot afford to purchase all of the expensive West-
published federal reporters or CD-ROMs, or the alternative Lexis or
Westlaw. They use our law library, although it is a great
inconvenience to those who must drive long distances to reach us.
A public domain citation system would create a market for other
publishers to also publish federal cases in various formats and at
lower prices. There is presently no market for competing publishers
who are unable to pay West's prohibitive pagination licensing fee.
Attorneys and other researchers are not willing to purchase
publications that cannot offer the mandatory West pagination,
required by current federal citation rules. In effect, current
federal citation rules allow West to enjoy a monopoly over the
publication of federal case law.
The introduction of a public domain citation system would
encourage other publishers to enter the market and publish federal
court decisions because they would no longer need the costly
references to West pagination. Such competition would inevitably
drive down the cost of federal case law to the public.
The adoption of a public domain citation system would greatly
benefit members of the bar and the larger public. I urge you to adopt
the ABA recommendation for a public domain citation system for
federal court decisions.
Susan Lewis-Somers
slewis@willamette.edu J.W. Long Law Library
(503) 370-6386 Willamette University
(503) 375-5426 (fax) 245 Winter Street SE
http://www.willamette.edu/-slewis/ Salem, OR 97301-3922
Author: Susan Lewis-Somers at Internet
Date: 3/13/0 10:27 AM
Priority: Normal
BCC: citation at AO-OCPPO
TO: ABA Citation Resolution at
Internet
Subject: Adopt ABA Public Domain Citations to Court Opinions
Honorable members of the Committee on Automation and Technology:
I am an academic law librarian and an attorney who urges that
you adopt the ABA recommendation for a public domain citation system
for federal court opinions.
PUBLIC DOMAIN CITATIONS WOULD ALLOW LITIGANTS AN EQUAL
OPPORTUNITY TO CITE TO FEDERAL CASE LAW
While the Willamette University Law Library's primary patrons
are our students and faculty, we also serve members of the bar and
the public who come to the law library to conduct legal research.
These public researchers, many of whom are sole or small firm
practitioners and pro se litigants, have few means to use the costly
Lexis and Westlaw services to find recent federal cases not yet
published in paper. Other researchers, located in rural areas like
Eastern Oregon, may not have access to a law library within a
convenient driving distance and, thus, may not have ready access to
traditional federal case reporters. However, all of these researchers
are able to find federal case law on the Internet.
But they are unable to include pinpoint citations to relevant
pages in these Internet-published cases in their court filings
because Internet-published cases may not include references to the
West-copyrighted pagination in its federal reporters. Yet, in most
cases, it is the pages in these West reporters that must be cited
under your current rules.
A public domain citation system, with paragraph numbering for
pinpoint citations independent of the West pagination, would allow
these small attorneys and pro se litigants to cite to federal court
decisions found on the Internet, as those who use the West reporters
or Lexis and Westlaw (with their references to West pagination) may
do now.
PUBLIC DOMAIN CITATIONS WOULD BRING PUBLISHER COMPETITION, WHICH
WOULD ENSURE LOWER-COST FEDERAL CASE LAW
Many of the sole practitioners and smaller law firms in this
community simply cannot afford to purchase all of the expensive West-
published federal reporters or CD-ROMs, or the alternative Lexis or
Westlaw. They use our law library, although it is a great
inconvenience to those who must drive long distances to reach us.
A public domain citation system would create a market for other
publishers to also publish federal cases in various formats and at
lower prices. There is presently no market for competing publishers
who are unable to pay West's prohibitive pagination licensing fee.
Attorneys and other researchers are not willing to purchase
publications that cannot offer the mandatory West pagination,
required by current federal citation rules. In effect, current
federal citation rules allow West to enjoy a monopoly over the
publication of federal case law.
The introduction of a public domain citation system would
encourage other publishers to enter the market and publish federal
court decisions because they would no longer need the costly
references to West pagination. Such competition would inevitably
drive down the cost of federal case law to the public.
The adoption of a public domain citation system would greatly
benefit members of the bar and the larger public. I urge you to adopt
the ABA recommendation for a public domain citation system for
federal court decisions.
Susan Lewis-Somers
slewis@willamette.edu J.W. Long Law Library
(503) 370-6386 Willamette University
(503) 375-5426 (fax) 245 Winter Street SE
http://www.willamette.edu/-slewis/ Salem, OR 97301-3922
Subject: ABA Citation Resolution
Date: Fri, 14 Mar 1997 09:36:58 -0700
From: jdm@csn.org (John D. MacFarlane)
To: citation@teo.uscourts.gov
Appellate Court and Circuit Administration Division
ATTN: ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
Sirs:
As a former state Attorney General (Colorado, 1975-83), I have
long held a close interest in the availability of electronic legal
research materials to the general public. I commend your willingness
to solicit public comments on this issue.
Comments have been solicited regarding the following two
matters:
(1) Whether the federal courts should adopt the form of official
citation for court decisions recommended by the ABA resolution; and,
COMMENT: I strongly support the ABA Citation Resolution. All
court decisions of record should be freely available to the public
domain. The electronic retrieval systems offered by Westlaw and Lexis
have been transition systems and, as such, served their purpose well
in the absence of inexpensive publicly-available alternatives. With
the advent of the Internet, however, public information should be
provided in a format by which it can be made freely available. The
ABA Citation Resolution would provide the necessary format for court
opinions.
(2) The costs and benefits such a decision would have on the
courts, the bar, and the public.
COMMENT: The ABA Citation Resolution recommendation offers a
cost-free alternative format for court opinions. All it requires is
that each opinion contain a unique number and that each paragraph be
sequentially numbered. There is no additional expense inherent in
this procedure, and it would be consistent with existing indexing
techniques.
Although the federal courts have access to Westlaw and Lexis,
many state courts, lawyers, and certainly the public do not, because
of their relatively high cost. Court opinions available without
charge on the Internet would provide the missing element necessary
for dissemination of vital public information on which a large part
of the public depends.
A similar case involves the U.S. Securities and Exchange
Commission corporate public filings, which are now available free of
charge on the SEC web page. These were formerly available (in
electronic form) only through Lexis. Corporate financial information
which has been theoretically available to the public for decades is
finally achieving its original promise. The courts can do no less
with legal opinions. If one is supposed to know the law, one must be
able to access it without paying exceptional charges. To charge fees
to access the law is, in my opinion, not qualitatively different than
to charge fees for exercising the right to vote.
Respectfully submitted,
John D. MacFarlane
2080 Bellaire Street
Denver, CO 80207
(303) 377-0490
jdm@csn.org
Author: ammedina@juno.com (Anthony M Medina) at Internet
Date: 3/13 0 03:50 PM
Priority: Normal
BCC: citation at AO-OCPPO
TO: citation@ao.uscourts.gov at Internet
Subject: Comments on Public Domain Citations
Message Contents
Does the implementation of the public domain citation scheme
mean that the courts will no longer distinguish cases which are
"published" or "reported" cases from those cases which are
"unpublished" or "unreported"?
Does this scheme mean that any and all cases decided by the
courts will have full value as precedent?
Does this scheme mean that any and all cases decided by the
courts will become binding in the appropriate jurisdictions?
I disagree with the notion that there is a "West monopoly" on
citations. The existence and reliance upon publishers such as
American Maritime Cases, Bureau of National Affairs, United States
Patents Quarterly, Mealey's Litigations Reports, to name a few,
speaks volumes about the competitive nature of the legal publishing
industry. There is no "West monopoly" in the legal publishing
industry.
To the extent that this topic includes the envisioning of courts
posting their decisions on web sites accessible via the Internet,
please read the following article that discusses how there is no
permanence on the Internet. Given the dynamic and fluid nature of web
site technology, where is the wisdom of moving the *law* to this
environment? As of 3/13/97, the URL is
http://www.slate.com/webhead/97-02-27/webhead.asp
The irony is that no one knows whether this article will exist
next week, or in what location.
Anthony Medina, Esq.
Seattle, Washington
ammedina@juno.com
March 14, 1997
Judicial Conference of the United States
Committee on Automation and Technology
In re: ABA Citation Resolution
I. INTRODUCTION
The Judicial Conference of the United States (Judicial
Conference) requested public comments on whether the federal courts
should adopt the form of official citation for court decisions
recommended by an August 1996 American Bar Association (ABA)
resolution and the costs and benefits of such a decision. 62 Fed.
Reg. 8037 (February 21, 1997). The undersigned attorneys /1/ hereby
provide the following responses to these two questions.
II. RESPONSE TO QUESTIONS
1. WHETHER THE FEDERAL COURTS SHOULD ADOPT THE FORM OF OFFICIAL
CITATION FOR COURT DECISIONS RECOMMENDED BY THE ABA RESOLUTION.
The federal courts should adopt a form of official citation for
court cases which is in the public domain. The ABA resolution
provides the basis for such a system. It is entirely inappropriate
for a private entity such as West to "own" the official citations to
government information. Although one could have constructed an
economic argument in the 19th and early 20th century in support of a
private entity publishing court opinions /2/ we do not believe that
such an argument has any force today. Personal computers are
widespread in home and office, providing the means for the public to
access, read and manipulate electronic information. There are many
electronic formats which are easily readable by these computers
(e.g., ASCII, WordPerfect, Microsoft Word), and it is easy to convert
from one format to another. Distribution of electronic information
via the Internet, CD-ROMs, and floppy discs has lowered the cost of
"publishing" below that necessary to publish printed reporters. Thus,
any economic rationale for private publication of "official"
reporters no longer exists. The Judicial Conference should recognize
both the tremendous changes in technology and expanded public
capability to access information and end the reliance on the West
reporter system for official court citations.
The proposed ABA system provides the best public domain citation
form because of its simplicity and conceptual straightforwardness. We
also support the ABA's proposal whereby the courts would assign the
paragraph numbers in the opinions. Given the length of many opinions,
the lack of pre-designated paragraph numbers increases the
possibility that publishers would assign inaccurate paragraph numbers
due to miscounting of paragraphs.
2. THE COSTS AND BENEFITS SUCH A DECISION WOULD HAVE ON THE
COURTS, THE BAR, AND THE PUBLIC.
Because West enjoys an effective monopoly on the citations to
court opinions, the federal government (not to mention the general
public) is forced to pay monopolistic prices to West. West's monopoly
is attributable to several factors. Many federal courts (and a
majority of state courts) have designated the West reporter as the
"official" reporter and therefore do not publish separate opinions.
Further, the local rules for these courts often mandate the use of
the Harvard Law School's "A Uniform System of Citation" which
designates the West reporter as the preferred citation source and
recommends parallel citations to the West Reporter where there is an
official reporter. Finally, we note that most law school journals and
publications mandate citation forms that utilize the West reporter
system. Therefore, everyone -- the federal government, a member of
the bar and the general public -- must use either the West reporter
or a reporter whose publisher has negotiated a license for use of the
West citation, in order to provide proper legal citation to court
opinions /3/. In sum, the legal profession has developed to the point
where an inherent part of the legal function requires access to the
West reporters. West is therefore able to charge -- and all end users
are forced to pay -- monopolistic prices for access to the West
reporters.
We do not regard the availability of the text of court opinions
on the Internet or through private information services (e.g., Lexis,
Counsel Connect) as posing a viable alternative to the West reporting
systems. Most of these Internet sites and services do not include the
West page citations. Thus, they cannot be viewed as being complete
substitutes for the West reporters. Further, since the few services
that provide West citations do so because they have negotiated a
license and payment of fees to West, such services are at a distinct
competitive disadvantage compared to West.
Some commentators suggest that the West "Key Number" and digest
system provide significant information that the ABA citation system
would not. However, adoption of the ABA system would in no way
diminish access to West's "Key Number" and digest system. Those who
believe that West's system provides useful value-added information
can continue to purchase this information from West. The marketplace
will decide whether there is commercial value in the West key number
and digest system; West should not be allowed to enjoy the unfair
advantage of having their citation system as the "official" citation.
We concede that the federal government (and therefore the
taxpayer) will be required to pay for both the increased costs of
federal courts for preparing their opinions for use in a non-
proprietary, public domain citation system, and making these opinions
available to the public. However, these costs can be controlled in
part through: (1) the development of software for automated paragraph
numbering of court opinions, (2) development and implementation of
database systems for automated tracking and numbering of opinions as
they are issued, and (3) using electronic bulletin boards and
Internet sites for allowing low-cost access and dissemination of
court opinions. In any event, we believe that the judicial function
constitutes an essential government function, that court decisions
are the intended product of the judiciary, that the public is
entitled to access to court decisions, and therefore the costs of
placing court decisions in the public domain in a form which
maximizes its dissemination to the public should be borne by the
public.
There will be some impact on the courts and bar in a transition
to a new citation system, since judges, attorneys and support
personnel will have to learn the new citation system (even though it
is a relatively straightforward system). However, we do not see that
the necessary training will impose large costs or involve substantial
amounts of time.
We also believe that the general public will also benefit from
the use of a non-proprietary, public domain legal citation system.
Many members of the public follow legal developments in a specialized
area. Their narrow field of interest and limited resources do not
permit the purchase of a subscription to either Westlaw or a West
reporter. Nonetheless, their ability to follow recent legal
developments is important and contributes significantly to informed
public participation. For example, one of the undersigned has a
neighbor who is very interested in right to choose death issues. She
serves on an advisory board and has spoken in forums as far away as
Japan. She is retired and her income does not permit her to purchase
West service for this specialized nonincome-producing use. Hence, she
must go to the library in order to read the West reporters, and to
obtain the official citations for court opinions. Since she is quite
old, it is an unnecessary hardship in winter for her to drive to a
library to access the West reporter and obtain the official
citations, when the opinions could be accessed and citations obtained
at home, absent the West proprietary citation.
III. CONCLUSION
We urge that the Judicial Conference endorse the system of
citation for U.S. court cases developed by the ABA.
Respectfully submitted:
Steven F. Crockett
Dennis C. Dambly
Grace H. Kim
Henry J. McGurren
Geary S. Mizuno, gsm@nrc.gov,
(301) 415-1639
Marjorie S. Nordlinger
Susan L. Uttal
Robert M. Weisman
FOOTNOTES
/1/ The attorneys are employees of the United States Nuclear
Regulatory Commission (NRC), an independent federal agency. However,
the views expressed here are the views of the undesigned attorneys,
and do not represent the views of the NRC.
/2/ Presumably, the argument would have been based on the large
cost to the federal government (and therefore the taxpayer) of
publishing official court reporters and the absence of private
commercial interest in publishing court opinions absent reasonable
assurance that they could recover their publication costs; this
assurance would be provided to the commercial publisher by denoting
its publication as the "official" reporter, thereby securing a market
for the publication.
/3/ The availability of slip opinions published by the courts
and the availability of court opinions through legal information
services other than West (e.g., Lexis) do not fundamentally argue
otherwise. In both cases, the lack of the West citation limits the
usefulness of the slip opinion or computer printout since they cannot
serve as a basis for an official legal citation. We also note that
West's own legal information service -- Westlaw -- until recently did
not provide page breaks in the computer screen display and printouts
of opinions which correspond to the pages of the published West
reporter. This significantly reduced the user's ability to substitute
a subscription to Westlaw for a subscription to the relevant West
reporter.
END OF FOOTNOTES
Author: at ~Internet
Date: 3/14
Priority: Normal
BCC: Citation at AO-OCPPO
TO: citation@ao.uscourts.gov at ~Internet
Subject: Support For Public Domain Citations For Court Opinions
The Planning and Conservation League
926 J Street #612
Sacramento, CA 95814
916-444-8726--FAX: 916-448-1789
ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S.
Courts, Washington, DC 20544
via Internet: citation@ao.uscourts.gov
Dear members of the U.S. Judicial Conference:
I am writing to urge the United States Judicial Conference to
adopt a public domain citation for judicial opinions.
As the court is aware, at present only the United States Supreme
Court publishes its own official reporter of court decisions. This
reporter is published years after the opinion is issued by the court.
As a consequence, the citation for most federal case law is based
upon the page and volume numbers of books sold by West Publishing, a
firm owned by Thomson, the Canadian publishing giant.
This may have been reasonable when West was the only publisher
of lower court federal opinions. However, today electronic
publishing has allowed multiple sources of case law. The exclusive
use of West's citation system today impedes the use of these
alternative sources.
A system of citation which is based upon the private publishing
of opinions in books also has obvious technical limitations in
today's world of computers and the Internet. Why wait for a citation
until a book is published? How should page numbers be represented on
Internet Web pages or on a CD ROM? Why should lawyers and the public
have to go back and change their citations when West delivers its
printed volumes? Clearly it is time to embrace a more modern citation
system that is appropriate for the wide range on technologies used to
disseminate legal information.
In addition, West Publishing maintains that it has a copyright
claim on citations, and the courts' de facto requirement that West
citations be used has caused a troubling situation. Law schools and
others provide some federal case law on the Internet to the public
without charge, but its use is significantly impaired because it
cannot be cited. Moreover, the lack of a public means of citation
retards more widespread internet availability of the case law.
The West claim that it "owns" the citations under copyright law
is being tested in federal court. We are among those who believe the
court should and will reject the West assertion that it can copyright
judicial citations.
However, the Judicial Conference should be aware that West is
seeking other legal mechanisms to buttress its ownership claims to
citations. West is the single most important proponent of a new sui
generis law for databases, that would define its paper bound court
reports as a "database," and prevent unauthorized "extraction" of its
citations. This proposal was considered by a December 1997
diplomatic conference in Geneva, hosted by the World Intellectual
Property Organization (WIPO). Congress has already indicated that
it is planning hearings on this proposal. Moreover, West
publishing has sought other legislative vehicles to strengthen its
monopoly on judicial citations, such as an amendment to the federal
Paperwork Reduction Act.
Thus, regardless of the outcome of the copyright suits, the
Court must recognize that its continued reliance on a private company
to provide citations for its opinions may block others from providing
usable case law.
The idea that any private company could "own" something as basic
as the citations to court opinions is repugnant. Respect for the law
is based upon the notion that the law is essentially democratic and
civic, not the domain of private interests. We believe that the
courts should provide a public means of citation. Absent doing so
the courts effectively mandate use of a private company's product to
access and use public documents.
There is now broad public support for the notion that government
bodies should use the Internet to enhance the public's access to
public documents. This is important for everyone, not only for
practicing lawyers or legal scholars. Yet the courts continued
reliance on a private company to provide the citations to make case
law usable blocks full use of the case law currently available to the
public for free.
We recognize that judges and court employees will have to expend
some effort to number court opinions, and to number the paragraphs of
opinions. This cannot be a significant burden for the court. The
benefits to the public clearly warrant such effort. Indeed, in
evaluating this proposal the court should also consider the
beneficial impact greater competition would have on the courts own
costs in obtaining citable case law.
For these reasons, we urge the Judicial Conference to adopt a
system of public domain citations to court opinions. Thank you for
taking my views into consideration as the Court makes a decision on
this most important issue.
Very truly yours,
Gary A. Patton, General Counsel
Planning and Conservation League
Author: Mark Pedersen
Date: 3/11/97
Priority: Normal Receipt Requested
BCC: Citation at AO-OCPPO
TO: citation@ao.uscourts.gov at Internet
Subject: Proposed Uniform Citations
In my personal opinion, I agree with the ABA that it's about
time to change the way we cite to case law. Any difficulties with
numbering paragraphs of opinions can be taken care of with word
processing software that will number paragraphs automatically.
Mark W. Pedersen
Assistant District Attorney
201 Hall of Justice
Rochester, NY 14614-2193
Tel. 716-428-5917
Fax 716-428-5343
Email mcda@mcls.rochester.lib.ny.us
Author: power@drs.state.vt.us (Marjorie Power) at ~Internet
Date: 3/14
Priority: Normal
BCC: Citation at AO-OCPPO
TO: citation@ao.uscourts.gov at ~Internet
Subject: ABA Citation Resolution
To Judge J. Owen Forrester, Chair, Committee on Automation and
Technology.
Dear Judge Forrester:
Thank you for the opportunity to comment on the ABA Citation
Resolution. You asked for comments on the following questions:
(1) Should the federal courts adopt the form of official
citation for court decisions recommended by the ABA resolution?
The courts should adopt an official citation which is not
dependent on the medium in which the decision is published, but which
can be used irrespective of format. Nowadays, there are many ways to
acquire the text of a court's decision. You can directly from the
computer screen, print it from a screen dump, receive it by e-mail,
download it from an FTP site, from the World Wide Web, from a gopher
site or a dial-up connection. You can store it on paper in a manila
file folder or in electronic form on a diskette, a hard drive, a
tape, or a CD-ROM, in any one of a number of file formats. It can be
printed out in the users's choice of typeface and font size on
various sizes of paper, or never printed. Each format will produce
different page numbers (and some will have none at all). But, the
language and the significance of the courts' decisions remain the
same, and there is no intrinsic merit in one format over another, as
long as it is possible to cite with clarity to relevant parts of the
decision. It is irrational, in this brave new world, to enable people
to find out what the law says in the comfort of their own homes and
then require them to find their way to the law library to get the
"blue book cite" if they want to share that knowledge with the
court.
Even if the pressure from these new media did not exist, the
proposed citation system would be a great improvement, permitting a
higher level of accuracy. The current system, using page references
only, can be very general, particularly in the West publications of
the federal Circuit and District Courts decisions. Large pages with
small print mean that a page reference may still leave the exact
point unclear, allowing, whether by inadvertence or design,
unacceptable imprecision. This problem is obviated when the more
specific paragraph reference is used.
This change will make legal citation easier and less convoluted
for the courts, the bar, and pro se litigants. Currently, we have to
distinguish between citations to slip opinions, advance sheets, and
bound volumes. As time passes, citations become obsolete.
Memoranda and briefs must be constantly revised as a case moves
through its various stages. References in older opinions become
obscure. With the proposed system, the citations would be set at the
moment the decision was issued and no further changes would be
necessary as it passed through the different stages of publishing and
other forms of dissemination.
The current system of citation operates to discourage the use of
new methods of disseminating the law and thereby impedes their
further development. It encourages vague citation and wastes the
courts and practitioners time up-dating citations.
(2) The cost and benefits such a decision would have on the
courts, the bar, and the public.
The cost of producing this body of case law has already been
borne once by the United States taxpayers through their support of
the judiciary. To gain access to what they have already paid for,
they are asked to pay again and again through state and local taxes
used to purchase volumes of printed decisions for public sector
lawyers and libraries, and they pay again through the costs of
publications reflected in their attorneys' bills.
Numbers of entities have come forward to provide low cost or
free access to the decisions which embody our law. Many universities
have projects providing free access to case law, such as the Second
Circuit archive at Pace University. States like Vermont have made
their supreme court decisions available on-line. An individual needs
only access to the Internet or perhaps a CD-ROM. Often people can
get access at their local library if they do not have a computer at
home. But because of the antiquated citation system, the public
cannot get the full benefit of these resources.
I am a lawyer working for a division of Vermont state
government. In this era of "small government", one of the few
unlimited resources at my disposal is my Internet connection.
Without leaving my desk, I can do most of my legal research either
on-line or from a CD-ROM, but before I can give the court the results
of my labors, I have to drive 24 miles round trip to the nearest law
library, just to look up the cites. This is not an efficient use of
my time. It is just a waste of the taxpayers money.
Lawyers in private practice face similar choices. They
must either invest in a larger library than they really need or spend
time traveling to one of the two law libraries in the state. Either
way, the client foots the bill. More unnecessary costs.
I have heard that some judges have opposed the ABA resolution on
the grounds that sequential numbering of opinions and paragraphs
would be a costly burden to the judiciary and their staffs. I
give little credence to such nonsensical rumors. Our judges and
their staffs are intelligent and dedicated persons, who would not
allow some slight personal inconvenience to interfere with a project
so conducive to the public good. Fortunately, no such difficulty
need be associated with the new citation system.
At one time, I served as a hearing officer for the Vermont
Public Service Board. In this capacity I was required by law to
make "separately numbered findings of fact". In some cases, the
findings were voluminous. In the early days of my employment,
these findings had to be renumbered every time a draft was revised,
leading to mistakes in sequence and disgruntled support staff. But
the same computer wonders that have brought the universal citation
issue to the fore, have also solved the sequential numbering problem.
Most up-to-date word processing programs, such as WordPerfect (which
I note is used by the Committee itself), can automate such numbering
to ensure the effortless and accurate enumeration of paragraphs even
after multiple revisions, additions and deletions, with no hardship
for either judges or staff.
Before taking a decision that would entrench the current system
for another generation, please consider the real motivation of those
who oppose the change. Is it inertia or unjustified fear of change?
Is it a threatened commercial monopoly or other vested interest? The
current citation system places an unnecessary burden on the limited
resources devoted to the operation of our legal system. Under the ABA
proposal, all participants in the legal process would benefit and the
new found efficiencies of the system would inure to the benefit of
the public as a whole.
Sincerely,
Marjorie Power
power@drs.state.vt.us
Division of Rate Setting
103 South Main Street
Waterbury, VT 05671
802-241-2708
Subject: Public Domaine Citation System
Date : Fri, 14 Mar 1997 21:59:50 -0500 (EST)
From : SR2445@aol.com
To : citation@teo.uscourts.gov
CC : Steve Ramey@grafix.net.com
I strongly support the idea of a public domain citation system.
This is so for many reasons.
We are a legal clinic and assist indigents with legal matters.
Our clients are poor but sophisticated. They use court opinions which
are published on the internet; such as at the Cornell web site.
Obtaining these opinions is free; however to cite these cases or
otherwise provide a copy we must go to a law library and copy from a
book which has a citation which is recognized by the courts. Not only
is this costly but the lack of access to law libraries is an
obstruction. With the citation system suggested by the Judicial
Conference two problems are solved; cost and access. Access would
also be an issue for seniors and the handicapped. The strength of the
internet is that it allows people to band together and leverage their
efforts. Consider all the locations too remote for a law library
which has been reached by the world wide web.
With the publication of law on the world wide web -- the debate
of finding a media-independent and public domain system is moot. If
America doesn't come up with a system -- the world will. For example,
consider an emerging democracy tying to model their legal system
after America's, or all those people who do not have access to
commercial books but nevertheless have them on the world wide web. If
a means of citing these cases is not developed for the world to
follow then the world will do it and we will eventually follow their
leadership.
Everyone has been stunned over the remarkable uses ordinary
people have created with the world wide web. No one can predict the
unanticipated benefits a public domain citation system would yield.
Subject : Dom Vetri at ~Internet
Date : 3/13/ 0 11:30 AM
Priority: Normal
BCC : citation at AO-OCPPO
TO : at ~Internet
Subject : citation
Dear People: I fully support the ABA endorsed citation format.
The proposed system will allow for greater public access to case law
materials. Thank you. Dominick Vetri
Dominick Vetri, Professor of Law
University of Oregon, Eugene, OR 97403
Fax: (503) 346-1564, Phone: (503) 346-3868
dvetri@law.uoregon.edu
Author : woodard@hermes.law.stetson.edu (Woodard, L.) at ~Internet
Date : 2/24/97 3:35 PM
Priority: Normal
BCC : CITATION at AO-OCPPO
TO : citation@ao.uscourts.gov.uscourts.gov at ~Internet
Subject : Citation style
As user and finder of cited cases for the past 38 years, I urge
the federal courts to adopt a vendor neutral citation method. The
primary citation of a case should be developed from the information
contained in the case or assigned to it by the court clerk. It should
be self-evident. The citation format should permit the use of
additional citations but require the use of the court - assigned
citation.
Sincerely,
J. Lamar Woodard
Prof. J. Lamar Woodard
Director of the Law Library
Stetson University College of Law
1401 61st Street South
Gulfport (St. Petersburg) FL 33707
woodard@hermes.law.stetson.edu
Phone: 813 562 7833
Fax: 813 345-8973
"We are what we repeatedly do. Excellence, then, is not an act,
but a habit." --- ARISTOTLE
405 W. College Avenue #206
Tallahassee, FL 32301-1433
March 11, 1997
Appellate Court and Circuit Administration Division
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Re: Notice of Opportunity to Comment and of Public Hearing on
the ABA Citation Resolution, 62 Fed. Reg. 803
To Whom It May Concern:
1 I am the Editor-in-Chief of the Florida State University Law
Review. Although I write on my own behalf, my experience in making
the Law Review the first continuously published traditional law
review on the World Wide Web, see ,
has made me quite interested in the availability of primary sources
of legal authority on the Web. "While the opinions of all U.S. Courts
of Appeals are now made available on the Web, because the federal
courts generally require citation to opinions in the case reporters
of West Publishing Company, a private vendor, the opinions on the Web
are entirely useless to anyone who wishes to cite them in a court
document. Thus, I feel it would be in the public interest were the
federal judiciary to adopt the vendor and medium neutral citation
system approved by the American Bar Association this past August.
While I set forth the bulk of my reasoning below, I would in addition
refer the reader to an article I published last year examining the
historical background and issues of copyright law that have led to
the citation proposal. See James H. Wyman, Freeing the Law: Case
Reporter Copyright and the Universal Citation System, 24 Fla. St. U.
L. Rev. 217 (1996).
2 Case law today is electronic. Its expression in print-based
formats such as West Publishing Company's National Reporter System,
although certainly a necessity up until a few years ago, seems like
an afterthought today. Courts compose their opinions electronically
via word-processing software and then disseminate them
electronically, either via modem to publishing companies such as West
or to a court's own electronic bulletin board system (BBS), from
where they are generally downloaded and compiled on a Web site or CD-
ROM. However, these same courts continue to insist that citations to
these opinions be to the afterthought -- the print-based reporter of
a private vendor -- instead of the original electronic opinion
itself.
3 The ABA citation proposal recognizes the reality of electronic
opinions by providing an eminently useable citation form for these
opinions. Instead of being relegated to a parenthetical at the end of
a citation, the year in which the opinion was issued and the
jurisdiction identifier come first, replacing the volume number and
name of the private vendor's case reporter. Instead of a first-page
number identifying where the opinion can be found in the case
reporter, a number indicates that an opinion is, e.g., the fifteenth
opinion issued by the court in the year in question. Finally, and
perhaps most importantly, instead of a pinpoint page number more or
less identifying the location of the cited material within the
opinion, a paragraph number is employed, providing a much more
precise form of pinpoint.
4 Perhaps the best way to gauge the utility of this scheme is to
answer the arguments marshaled against it. First among these is the
"citation to nowhere" argument, i.e., the notion that the new
citation form does not inform the reader where he or she may find the
cited case. Where the citation "91 F.3d 1574" tells the reader that
the case may be found on page 1574 of volume 91 of the Federal
Reporter, Third Series, the citation "1996 3Cir 15" just tells the
reader that the case was the fifteenth decided by the Third Circuit
in 1996. According to the citation-to-nowhere argument, the reader is
left to wonder whether the case can be found in a legal newspaper, a
case reporter, or on the Internet or CD-ROM. Thus, the new citation
form will supposedly "make[] it much more difficult to evaluate the
reliability of information sources" because "it is very likely that
one will find variant texts between competing products." Robert
Berring, On Not Throwing Out The Baby: Planning the Future of Legal
Information, 83 Cal. L. Rev. 615, 632 (1995).
5 The risk of variant texts, however, is already present. For
example, although the citation "91 F.3d 1574" SEEMS to indicate that
the individual citing the case used the Federal Reporter, in
actuality, it is just as likely, if not more so, that the individual
used WESTLAW, LEXIS, or a CD-ROM. If these sources offered variant
texts, the marketplace would quickly winnow them out. Similarly,
unreliable publishers using the new citation format would find
themselves either quickly out of business or shunned by legal
researchers. Moreover, the risk of variant texts is a minor one
because all providers will have obtained the opinion from the court
BBS; to vary the text, the provider would have to actively alter it,
and those that do will have a difficult time finding a receptive
market. Finally, as the U.S. Supreme Court does with its Project
Hermes, the prospect of central repositories such as the Internet
servers of law school libraries within the federal circuits
containing the opinions in their original word-processing formats
fills in the "nowhere" gap to which this argument alludes. To find
the authoritative version of a case, one would download the original
word-processing file from one of these repositories. As a law review
editor, I see a similar process already at work today: while the Law
Review's "cite-checkers" often use WESTLAW or LEXIS to check a case,
if there is any question about a cite, the cite-checker goes to the
library shelves to check the "official" case reporter.
6 Another argument against the citation proposal is ostensibly an
argument against all court-mandated citation forms: the so-called
"open rule" through which courts allow citations to any reliable
source. See, e.g., Donna M. Bergesgaard & Andrew M. Desmond, Keep
Government out of the Citation Business, Judicature, Sept.-Oct. 1995,
at 63-64. Thus, when a case is found only in a legal newspaper, the
Internet, or a case reporter, the argument goes, courts should allow
citation to those sources. The difficulty here is obvious: courts
cannot be expected to subscribe to every conceivable provider of
legal authority. While a number of courts allow practitioners to cite
to unusual sources, provided the court and the opposing party are
provided with a copy of the cited case, allowing such exceptions on a
broad scale -- which would be inevitable with an "open rule" of
citation -- would tax even the most organized court's logistical
skills. The "open rule" is, in fact, little more than an argument for
the status quo. Case reporter publishers, such as West Publishing,
are currently regarded as the most "reliable" providers of legal
authority; thus, most attorneys would continue to use such providers
under an "open rule." Nevertheless, the ABA citation proposal is a
slightly different, yet much more appropriate form of "open rule"
because it allows attorneys to USE any reliable source rather than
CITE to any reliable source; the citation is contained in the opinion
and will thus be readily found in all sources.
7 A third argument contends that the ABA citation proposal would
unnecessarily disadvantage print publishers and users of print-based
case reporters. See Donna M. Bergesgaard & William H. Lindberg, A
Dissenting View, in Am. Ass'n of L. Librs., Report of the Task Force
on Citation Formats 30-33 (1995). The new citation format fails to
provide the reader with information on where he or she might find the
cited case in a print reporter, according to this argument. Moreover,
print publishers would be forced to come up with translation tables
and paste cluttered spine labels on their volumes. In addition, goes
this argument, print is still the preferred medium for legal
research, and moving to a nonprint-based citation form would require
massive retraining.
8 However, it is the print publishers who are at fault for
numbering their reporters by volume rather than by year, and for
combining jurisdictions within a single volume. Such an approach was
a welcome innovation a century ago; however, it cannot be allowed to
restrain the movement of legal research into the more efficient
electronic realm. Further, publishers such as West already provide
translation tables today to aid those seeking to translate citations
from official state reporters to citations for West's National
Reporter System. One hardly sees West complaining that these official
reporters disadvantage users of West's reporter system. Finally, the
simplicity of the new citation format, with a year instead of a
volume number and with its familiar jurisdiction identifiers at the
core instead of in a parenthetical, hardly seems as if it would
entail anything approaching "retraining." Moreover, those who are
more comfortable reading cases in print are free to print out the
cases they find.
9 The last of the major arguments against the ABA citation
proposal involves an economics approach: the market should determine
citation formats. See Berring, supra at 631. Because West Publishing
has won the market over with its comprehensive case reporter system,
the judiciary should not interfere by mandating a citation format
that has no demand; the market will accept a new citation format when
it is ready. However, the legal citation market is hindered from
responding to any new proposals precisely because the judiciary does
indeed mandate a citation format, albeit one that involves the use of
West's reporters. Although this can quickly become a "chicken or egg"
issue, in the end it is clear that the market favors West now because
the judiciary favors West. Moreover, the questionable specter of
market harm to a legal publishing giant should not be a consideration
at all; rather, the judiciary should consider first and foremost the
efficient operations of court business and the needs of officers of
the court. The price of access to USEFUL (i.e., "citable") electronic
legal information is artificially high because West Publishing
asserts (quite questionably to my mind) copyright in the page numbers
of its reporters. Entities wishing to provide legal information in
electronic format to members of the bar must either pay West or risk
litigation. These circumstances should underscore that the market is
not in a position to determine citation formats when the judiciary
mandates citation to West reporters and West virtually monopolizes
the entire market.
10 The virtues of the ABA citation proposal are obvious. First, it
is instantaneous. There is no wait for several months until the
Federal Reporter or Federal Supplement is released or several years
until the United States Reports is released. 1 A court opinion
released within the past several hours would have the same citation
it would have a decade from now. Second, the new citation format is
more precise. Citing via paragraph rather than page number makes it
easier to locate the cited material. Moreover, unlike page numbers,
paragraphs are not arbitrary divisions; rather, they generally
represent the complete thought of an author. Further, word-processing
software makes assigning paragraph numbers in documents automatic.
Indeed, I just now automatically numbered all of the paragraphs in
this Word Perfect document by selecting a simple command from the
menu. Third, the two pieces of initial information conveyed to the
reader are not the volume number and name of a private vendor's case
reporter, but rather the year the opinion was issued and the
jurisdiction identifier for the issuing court. Together with the
number indicating the order of the opinions release, an attorney
researching electronically can easily locate the cited case because
she knows that it was, e.g., the fifteenth opinion released by the
Eleventh Circuit in 1997. Databases, either on the Internet or CD-
ROM, would quite naturally be grouped in this fashion because they
were released that way to begin with. Print publishers would
presumably adapt by releasing volumes numbered by year instead of the
publisher's own volume number.
11 Adopting the ABA citation proposal would revolutionize the legal
information industry. Freed from the artificial constraints of a
market dominated by a single, private publisher of case reporters,
court opinions would become more readily available to both the bench
and bar at a considerably lower cost. Publishers would compete by
adding value to their compilations of court opinions, rather than by
making spurious copyright claims in their arrangements of opinions.
One can easily envision "plain vanilla" databases, hosted by law
school libraries and offered free of charge to the public, through
which users can search not only by keyword or party name, but also by
citation. More complex search engines, such as those offered by LEXIS
and WESTLAW, would be available to customers willing to pay. Because
the citation and paragraph number are included in the opinion when it
is released, it is not unrealistic to anticipate being able to type
in a World Wide Web URL to call up a particular case. For example,
knowing that Emory University law library hosts Eleventh Circuit
opinions, someone trying to find the sixth paragraph of the fifteenth
case decided by the Eleventh Circuit this year would could type in
"1997 11 Cir 15.html#6" at the end of the the Emory library's URL
and be brought directly to the precise paragraph within the opinion.
It does not take much imagination to envisage electronically filed
briefs containing links to opinions, with the software creating the
document automatically recognizing, e.g., "1997 11 Cir 15, 6" and
providing a hyperlink that can be used by anyone reading the brief to
instantly call up the cited case. Unfortunately, none of this will
ever come to pass if current citation requirements are maintained. By
encouraging or even mandating citation to the print-based case
reporter volumes of a private vendor, the federal judiciary hinders
development in legal research, keeps the costs (which are passed on
to the public) of such research artificially high, and keeps the
legal information market closed off to all but a deep-pocketed few.
By adopting the ABA citation proposal, the judiciary can in one fell
swoop eliminate these problems. Private vendors already in the market
will adapt. New vendors will come forward and provide electronic
legal research capabilities currently unavailable to the sole
practitioner, storefront Legal Aid attorney, or small firm. The law
will become more universally available and more universally usable
than ever before; it will truly become a "seamless [W]eb." I strongly
urge the Conference to recommend that federal courts adopt the ABA
citation format as soon as possible.
James H. Wyman
Tallahassee, Florida
Subject: Public Access
Date: Tue, 11 Mar 1997 09:25:42 -0800
From: "William D. Young"
To: citation@teo.uscourts.gov
I am a member of the Oregon State Bar and an ALJ for a state
agency. I strongly believe that the West monopoly should be broken
and that the public should have access to the law in as unrestricted
manner as possible.
I am fortunate that my work requires frequent use of statutes,
regulations and federal court cases. I use the internet, almost
exclusively, for my research. Only when I must rely on printed
sources do I go to a library.
The work of all attorneys and the public's cost and interests
would be enhanced with freely available access to all state and
federal court records without payment.
William D. Young
1999 Kimberly Dr.
Eugene, OR 97405
Subject: ABA Neutral Format Citation Proposal -- Yes!
Date: Fri, 14 Mar 1997 09:00:48 -0800
From: National Institute on Firearms & Society
To: citation@teo.uscourts.gov
March 15, 1997
Appellate Court and Circuit Administration Division
ATTN: ARA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, DC 20544
The National Institute on Firearms & Society, an IRC Sec.
501(C)(3) approved educational nonprofit supports the development of
public policy in all areas of the relationship between firearms and
society. To accomplish this mission, the Institute compiles
information -- including case law -- for the use of researchers, the
media, teachers and students, legislative staffs and other persons
and organizations involved in this important area of public debate.
The existence of the Internet and the rapid expansion of
accessibility to it provide an ideal way to make this information
available quickly and inexpensively to a wide audience. The existing
case law citation system, however, frustrates our mission because the
format and copyright issues we have inherited prohibit us from
including material in a useful format, or in some, cases, at all.
The Institute, by unanimous vote of its Board of Directors,
supports the recognition of all laws, including case law at all
levels, as public domain material. Furthermore, it supports the
approval and prompt implementation of a neutral citation system to
facilitate the promulgation of such laws.
Thank you for your consideration.
Charles L. Eichhorn, J.D.
Executive Director
THE NATIONAL INSTITUTE ON FIREARMS & SOCIETY
Non-Profit - Non-Partisan - Non-Political
Independent Information, Research, and Education Programs
Supporting Firearms Public Policy Development
P. O. Box 6195 Tel: 510.522.3000
Oakland, CA USA 94603-6195 Fax: 510.523.2742
14 March 1997
TO : Judicial Conference of the United States
FROM: Pinecone Publications L.L.C. -- Karen Ott-Worrow, Publisher
RE : Adoption of the ABA-Endorsed Official Citation
Pinecone Publications L.L.C., a Washington, D.C.-based legal and
business publisher, strongly urges the Judicial Conference to adopt
the ABA-endorsed official citation.
The current system that requires publishers to use the
citation/numbering system of a privately owned corporation seems
unfair from a competitive standpoint. In addition, the court
decisions that are being cited would seem, to most observers, to be
in the public domain. How the system of page numbering/citation
somehow becomes the property of a private organization seems
ludicrous.
Pinecone understands that in today's global marketplace, foreign
investment in the United States should be expected as this country,
itself, attempts to enter foreign markets. Yet, we find it somewhat
problematic that we must pay a foreign-owned company for the right to
cite decisions handed down by judges paid by American taxpayers.
If the Judicial Conference adopts the ABA-endorsed proposal, we
believe that small to mid-sized publishers, such as Pinecone, will
have increased opportunities to publish their own case reporters.
Costs associated with producing our normal products also would like
decrease, so, it would seem to follow that some of those cost savings
could be passed on to our customers.
SHEPARD'S STATEMENT TO THE JUDICIAL CONFERENCE
OF THE UNITED STATES, COMMITTEE ON
AUTOMATION AND TECHNOLOGY
Thank you for the opportunity to make a statement concerning the
proposal for development of a nonproprietary legal citation system.
Shepard's supports the goal of improving access to legal
information. For more than 120 years, Shepard's has pursued this goal
by creating products which compile and track essentially every
citation to every court decision published in the United States. Over
the past 120 years of processing citation information, Shepard's has
gained considerable experience and developed expertise in legal
citations.
Shepard's does not see itself as the arbiter of citation
practices. Rather, Shepard's takes the citations world as it is and
seeks to make it more understandable. Shepard's believes that it is
the prerogative of the courts to determine the form in which cases
may be cited in briefs or legal memoranda submitted to them or in
opinions which they issue. Moreover, it is the right of information
providers to publish case reports under any system of organization
they choose, to create their own proprietary system of citation and
to provide parallel citations to any other system of reports in which
the same cases can be found. Without signifying either approval or
disapproval, Shepard's will reflect in its publications any new
citation formats which emerge and in which the marketplace
demonstrates a sufficient interest. Shepard's is not advocating that
new citation formats be implemented in either a uniform or in an ad
hoc manner.
Shepard's has worked with various organizations to ensure that
any new citation conventions proposed by such groups are technically
sound and intelligible and that any perceived need for the creation
of new public domain citations systems is balanced against the cost
of providing such new systems. We hope you will find our experience
and observations helpful in the development of a position on this
important issue.
As new citation formats are adopted, Shepard's has and will
continue to incorporate these changes into its citator product lines
in the most useable and practical format.
A number of years ago the legal community began using opinions
that were available only in slip opinion format and that did not yet
have an assigned volume, reporter and page citation. Shepard's
incorporated docket number citations into our product line to
facilitate the use of citation information by the legal community. An
example of how Shepard's has shown slip opinion citations is shown in
Attachment A.
More recently. the issue of vendor neutral citations has arisen.
Louisiana was the first jurisdiction to adopted a new citation format
and Shepard's has incorporated this citation into its citation
coverage. An example of Shepard's coverage for Louisiana citations is
included as Attachment B. Shepard's is also planning and working
toward the coverage of the alternative South Dakota citation.
Shepard's is willing to assist the Committee on Automation and
Technology in any way the committee feels is appropriate. Shepard's
has considerable expertise and experience in citation processing that
it is willing to share with the committee.