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March 24, 1996 HYPERLAW REPORT - JUDICIAL CONFERENCE PUBLIC COMMENTS
March 24, 1996
HYPERLAW REPORT -
JUDICIAL CONFERENCE PUBLIC COMMENTS
SUMMARY:
LETTER FROM MAGISTRATE OBJECTING TO FORM OF SURVEY
EXAMPLES OF CRITICAL COMMENTS BY FEDERAL JUDGES.
The Automation Committee of Judicial Conference is
holding a hearing in Washington, DC on April 3, 1996
concerning the ABA Citation Proposal. Comments were
due on March 14, 1997. Over 1200 pages of comments
were received and Eleanor Lewis of the American
Association of Legal Publishers has obtained the
entire set. Overwhelming, nearly all comments from
the public, bar associations, and other agencies
was in favor of the proposal. However, federal
judges and clerks expressed substantial opposition.
In anticipation of the hearing, the Automation Committee
and the Administrative Office of U.S. Courts conducted a
survey of judges and a 35 page table summarizing the
comments was made available, although the identity
of the judges commenting was not disclosed. The survey
was sent to all district and bankruptcy judges and
to all clerks. The survey response in scanned image PDF
format is on HyperLaw's WEB site.
The responses were largely negative, but
there is more to the story than that. The responses
indicate a glaring lack of understanding by
the judges about the ABA Citation report.
That is no surprise. The AO did not send a copy of the full
report to the judges.
One Bankruptcy Judge, JUDGE LEIF M. CLARK, who was in favor
of the proposal, had the following to say as to the process:
"I am concerned that the materials furnished in this survey
were woefully inadequate in addressing what I believe are
very real issues for the judges who are being asked to
complete this survey. The questions in the survey are
"bottom line," and do not reflect the nuances of the issue,
or the myriad of reasons that a given judge may have
answered in the way he or she did. As a result, I think it
will be dangerous indeed to draw any conclusions of value
with regard to the attitude of the federal judiciary to this
issue."
His entire statement follows. Other judges in response to
the survey made similar comments. On the whole, those
responding to the survey tended to be negative, and many
highly negative. A PDF image file (1 MB) of the responses is
on the HyperLaw WEB site. We hope to obtain the electronic
version of the responses, which are in tabular form and do
not identify the judge, on the WEB site in a few days.
In addition, some of the more highly critical letters are
posted on HyperLaw's WEB site, again in PDF image format,
and some are summarized on the WEB site and below.
Some of the survey response, particularly from district and
circuit court judges in the Fifth Circuit, are particularly
caustic.
For example:
"No. This [paragraph numbering] is needless work for the
courts and a remarkably stupid idea."
(Fifth Circuit District Court Judge)
Survey Responses at 29.
"Absolutely not. But if this is adopted by The Conference,
then it should require the attorneys to number
each paragraph in their briefs. And number their witnesses, too.
(Fifth Circuit District Court Judge)
Survey Responses at 28.
"The system we have now whereby each judge decides
which opinions to send to West Publishing for publication seems
to be working fine for bench and bar."
(Fifth Circuit District Court Judge)
Survey Responses at 26.
"The Louisiana Supreme Courts has changed its system
of citation, and most lawyers with whom I am in contact
find it more time consuming and of little value.
(Fifth Circuit District Court Judge)
Survey Responses at 25.
"Is there not enough work for everyone. Who
spends time thinking up this kind of thing.
(Fifth Circuit District Court Judge)
Survey Responses at 24.
"No. I am not in the business of stifling business.
'Official Pinpoint" citations only exacerbate
mindless citations."
(Fifth Circuit District Court Judge)
Survey Responses at 23.
"Absolutely not."
(Fifth Circuit District Court Judge)
Survey Responses at 22.
(Fifth Circuit District Court Judge)
Survey Responses at 22.
"These proposals are unnecessary and fail any cost/benefit
analysis and are likely unenforceable. The ABA should stay
out of interfering with judge's work."
(Fourth Circuit District Court Judge)
Survey Responses at 19.
"No, absent adequate funding from the ABA"
(Eleventh Circuit District Court Judge)
Survey Responses at 14.
"The court's opinions are written first for the parties and second as a contribution to a growing body of case law. The court is not disturbed that certain private entities profit from assembling and publishing the case and that our legal system protects their work in this respect."
(Tenth Circuit District Court Judge)
Survey Responses at 14.
"No. The court provides the text on numbered pages
and any other service beyond that should be provided
by the database provider.
(Tenth Circuit Judge)
Survey Responses at 10.
"Absolutely not. This is crazy. This thing
should be killed--and for good."
(Ninth Circuit Judge)
Survey Responses at 12.
"No. Aesthetic considerations outweigh any factors supporting the numbering of paragraphs by judges.
(Third Circuit Bankruptcy Court Judge)
Survey Responses at 1.
"We are being asked to intervene in a dispute between the
bar and West Publishing Co. We should stay out of it.
(Third Circuit District Judge)
Survey Responses at 30.
"No. Although a good idea in theory, it will cost a great deal in time expended to number the paragraphs."
(Second Circuit Magistrate)
Survey Responses at 34.
On the other hand, other judges had nice things to say:
"An official citation number beyond the case number has been added to each opinion of the U.S. Court of International Trade.
(International Court of Trade Judge or Clerk)
Survey Responses at 13.
"See no objection to numbering paragraphs.
That should make it an even playing field.
(Sixth Circuit Judge)
Survey Responses at 13.
"This seems to be a sensible solution arrived
after much deliberation by knowledgeable and concerned practitioners."
(Fifth Circuit District Court Judge)
Survey Responses at 8.
"Sequential numbering of paragraphs would not place and undue burden on the judiciary, and could be provided to assist with pinpoint citation."
(Eleventh Circuit Bankruptcy Judge)
Survey Responses at 3.
"WE CAN DO THAT."
(Ninth Circuit Bankruptcy Court Judge)
Survey Responses at 1.
****
[Now we know what happened to that good ole' American
"can do" DNA. The last residue of pure "can do" DNA in the
federal judiciary is now residing in a Bankruptcy judge
in the Ninth Circuit. Let's clone it.]
Following is the survey, and Judge Clark's response
is set forth below.
SUMMARY OF CONCERNS OF FEDERAL JUDGES
Many federal judges fully support the
ABA Report and understand the policy reasons
underlying the Report and Resolution.
Others have concerns, some based upon a misunderstanding of
the proposal, others based upon differing views of the
role of the courts, and others based upon related policy
issues.
Following is an overview of the concerns.
PUBLISHED VERSUS UNPUBLISHED OPINIONS
1. Many judges have a concern that sequence
numbering so-called unpublished opinions is in
some way suggesting that these opinions may indeed
be of precedential value.
COMMENT: One would assume that these judges
know that Lexis and Westlaw electronically publish
many so-called unpublished opinions and that most
people do not have access to those on-line systems
and thus do not have access to those opinions. These
judges do not seem to have the answer to why the
courts should discourage access by the many when
the privileged have access.
ORDERS VERSUS OPINIONS
2. Many judges have a concern at the district
court level because of the large number of orders
and memoranda opinions. They do not know how to
distinguish as to which documents require sequence
numbers. However, in this line of thought, many district
judges say they like the present system which is
that if they want an opinion "published", they
mail it to West Publishing Company
COMMENT: The fallacy in this argument is that
the judges are already making this determination
when they send the manuscripts to West. Requiring
sequence numbers merely institutionalizes this "informal"
practice, and, makes the selection of district court
case something in the public domain. So, even if
many judges wish to not number the non-precedential
opinions, the public would still be ahead by getting
the bulk of the meaningful opinions under a useful
immediately available citation.
ADMINISTRATIVE DIFFICULTY OF SEQUENCING OPINIONS
3. Many district court judges and clerks point out
the problem of sequencing opinions where there are
numerous judges and numerous divisions in the same
court.
COMMENT: If a court only sequence numbers precedential
opinions (and related amending order), this could probably
be done by hand, but it would be best if done by computer.
However, every opinion/order is already being placed in
a computer, which prepares the computerized docket sheet
available on PACER. Thus, this system could 0 easily
mark all opinions/orders to for sequencing, and
automatically assign the sequence number that would appear
in the docket sheet.
ADMINISTRATIVE DIFFICULTY OF MAINTAINING SEQUENCE
NUMBER/DOCKET NUMBER TABLES
4. Many judges point to the fact that cases and opinions
therein are already identified by a docket (case) number
and worry about the need to maintain cross-reference tables
between the sequence number and the docket number.
COMMENT: The PACER docket system could easily be modified
to handle these tables, plus, lists could easily be
generated and placed on the WEB. One interesting issue:
this same issue applies to the present West citations --
they do not include the docket numbers. Moreover, no one
ever inserts the West citation into the docket sheet for
the case. Has anyone ever pulled an opinion and tried
to see if that case was published by West. That is truly
a pain, although Westlaw and Lexis helps. It is worse if
there are multiple opinions in the same case.
DIFFICULTY OF INSERTING PARAGRAPH NUMBERS
5. A number of judges complain about the enormous
burden of inserting paragraph numbers. Other judges
point out that this is easily automated and is not
a problem at all.
COMMENT: There are many ways to number paragraphs. The
second group of judges is correct. In my view, the first
group are just complaining and probably complained about
moving from typewriters to computers and probably have been
complaining for the last five years about moving
to Windows word processors.
DISFIGUREMENT
6. A number of judges complain about disfigurement
of their opinions.
COMMENT: The answer to that is to two-fold. First,
no one ever claims that the West key numbers disfigure
the West opinions. Second, there are a variety of ways
to insert paragraph numbers to minimize visual aesthetic
effect, from using small superscripts to placing the numbers
in a margin. Thomson does this now in Canada, and Thomson/
West does this now for South Dakota, New Mexico, and US
Court of Military Appeals opinions. Finally, to the extent
that a reader has never seen paragraph numbers, they
may prove to be a distraction, but, the mind is
readily trained to not notice such distractions.
PARAGRAPH NUMBERING AFFECTS HOW OPINIONS ARE READ
7. Some judges object to numbering paragraphs because
it would tend to encourage some lawyers not to
read the entire opinion.
COMMENT: This is a subjective statement -- one could
respond that West key numbers in the text, which
are not official, encourage citations to those topical
categories and lawyers still do not read the entire
opinion. This advantage of an arbitrary paragraph
number is that is has no meaning, and therefore, no
one should rely upon only a single paragraph. However,
a West key number does indeed encourage lawyers to confine
reading only to the material under a single key number.
OTHER OBJECTIONS
These will be addressed in a subsequent report.
********************
THE AO SURVEY
This is the survey form sent by the Administrative Office to
all Federal judges, magistrates, clerks, etc. The ABA
Resolution was sent out, but the extensive thoughtful report
of the ABA Committee was not sent. Among the troubling
aspects is that question 3 completely misrepresents the
intention of the report.
The ABA report speaks of an immediately available permanent
citation: the question ignores the extensive discussion in
both the ABA, AALL, and Wisconsin reports that emphasize the
many reasons apart form West copyright claims, which are the
basis for the proposal.
********************
ABA RESOLUTION ON UNIVERSAL 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 fin
opinion so that there may be Pinpoint citations in which no
private sector company can have a copyright.
Name of Judge: ________________________ Circuit: _________
Court: _______________________ Date:________
Please return this form to: Appellate Court and Circuit
Administration Division
ATTN: ABA Citation Resolution
Fax Telephone Number: (202) 273~l33s
Mailing Address: Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Please return this form by March 14,1997.
************************
COMMENTS OF JUDGE LEIF M. CLARK, U.S. BANKRUPTCY JUDGE,
WESTERN DISTRICT OF TEXAS MARCH, 1997
**************************
Memorandum
TO: Appellate Court and Circuit Administration
Division
ATTN:ABA Citation Resolution
Suite 4-512
Administrative Office of the U.S. Courts
Washington, D.C. 20544
FROM: Judge Leif M. Clark
U.S. Bankruptcy Judge
Western District of Texas
P 0. Box 1439
San Antonio, Texas 78298
DATE: (SIC)
RE: Comments regarding the ABA Resolution on Citations
I have a few comments to accompany my response to the survey
initiated by the Administrative Office, Appellate Court and
Circuit Administration Division.
A. First and foremost, the basic concept proposed by the
ABA Resolution is sound policy, for the following two
reasons:
1. The courts of this country ought not be "hostage" to a
private publisher, which can claim copyright protection for
pagination, format, and the like. Ever since I first entered
law school, I have marveled that the "official reporters"
for both state and federal courts around the country are
private publishers. How odd!
2. The new pagination suggested by the ABA appropriately
lays the groundwork for the coming age of electronic access
to information, including court decisions. Ought there
really to be a distinction between those decisions mailed to
a private publisher and those decisions not mailed to a
private publisher? Are there not important precedents at the
local level with which local lawyers might be familiar,
while lawyers outside that jurisdiction may remain in the
dark? Truly equal access to justice demands equal access to
such precedents, and electronic access promises just that.
As more and more opinions of judges are "scanned" into the
data base not only of private publishers but also the
database of the courts themselves, the notion of a private
publisher exercising some sort of domain claim on these
decisions will (and ought to) become increasingly
anachronistic. Few things could ease this process more, it
seems to me, than a system of universal citation like that
proposed by the ABA.
B. These general comments having been noted, let me add a
few more specific points.
1. Will the universal citation system proposed apply only
to circuit courts and their decisions? The ABA Resolution
appears not to be so limited, but it was difficult to tell
from the materials sent me. In fact, I found the materials
woefully short on background information of any sort at all
- all out of keeping with the normal sort of survey usually
conducted by the Administrative Office. Why is that?
2 `What is an "opinion"? Does it include all orders (a very
critical issue for a court that signs thousands of orders a
year, most of which are "form orders" prepared by counsel)?
Only orders that are denominated "opinion"? Would it include
"memorandum decisions," or simply "decisions"? This becomes
much more of a problem at the trial level - and not simply a
problem for the judge but also for the clerk of court who is
expected to assign a number to that decision. How does the
clerk know which matters are to receive a number? How does
the clerk know what number to give the matter, in a
multijudge division or jurisdiction? Would there be a
"divisional" breakdown required in the citation format?
Would there be a separate numbering maintained for each
judge at the trial court level, or would numbering be
applied to decisions by any judge at the trial level?
3. `Who would decide what receives an "official" citation?
Would bankruptcy decisions continue to be cited? Frankly, 1
think they need to be, but some of my colleagues on the
district court might well disagree, especially given that
magistrate judge decisions are nominally not published
currently. Perhaps they should be. Will this end up becoming
a political issue - or worse, a "turf' issue?
4. Would there be a way in which courts could designate a
given writing as not an "opinion," so that it could not be
cited? Does this allow the courts to control the scope or
direction of precedent?
5. Does the numbering of paragraphs really cause any
problems with the or "readability" of decisions? Some of us
(perhaps unwisely) fancy ourselves pretty good writers and
may find the mandatory numbering of paragraphs constricting.
6. Would there be separate numbering for footnotes, or
would they be expected to follow the paragraph from whence
the footnote comes (1 would expect the latter, but the
resolution is silent on the issue).
7. `What about addenda or "exhibits" that might be
attached to the opinion? Would those be "numbered"?
8. `What would be the standard citation format for
bankruptcy court decisions?
C Overall, despite the questions, I favor a universal
citation system freed of its ties to a given private
enterprise. The problems are there to be solved, but the
ultimate goal appears to me to be both worthy and likely to
accelerate the automation of legal research--a positive move
in my view
D. I am concerned that the materials furnished in this
survey were woefully inadequate in addressing what I believe
are very real issues for the judges who are being asked to
complete this survey. The questions in the survey are
"bottom line," and do not reflect the nuances of the issue,
or the myriad of reasons that a given judge may have
answered in the way he or she did. As a result, 1 think it
will be dangerous indeed to draw any conclusions of value
with regard to the attitude of the federal judiciary to this
issue. For example, the first question might be answered
"no" by someone simply concerned about the use of the verb
"required" in the question, or by someone who believes that
someone other than the clerk ought to be doing the
assigning. Yet that same person may well favor some form of
assigning an official citation number. What will the
Appellate Court and Circuit Administration Division hope to
conclude from the answers to the first question? With
neither any particular background materials (beyond the
bare resolution of the ABA), nor refinement in the questions
asked, any conclusions drawn from this survey are inherently
suspect.
E. 1 am also concerned that the tenor of the questions
seems to be pitched to encourage a negative response to the
ABA Resolution. Certainly we cannot offer an "unbiased"
reaction on behalf of the Judiciary if we have in fact built
bias into the questions, thus loading the answer.
Thank you for affording us the opportunity to have
input into this important issue. 1 hope that the
Administrative Office continues to closely examine and
pursue the issue.
EXAMPLES OF COMMENTS
Note: the following links are to HyperLaw's WEB site
www.hyperlaw.com. The following is text that appears
on HyperLaw's WEB site as of March 24, 1997.
The information concerning the Judicial Conference Citation
comment has been collected by Eleanor Lewis of the American
Association of Legal Publishers ("AALP".) Over 1200 pages
of comments were received and provided to us on Friday,
March 21. Electronic versions were not made available. In
addition, the identity of the judges who provided the
response summarized in the table were not made public.
Anonymous response of judges to
Adminstrative Office survey. AALP is objecting to the
form of the survey which is inartfully drawn and
misrepresent the purpose of the proposal, the fact that the
judges were not provided with the ABA report, and the
failure to provide the identity of the judges in the survey
summary. See the comments of Judge Clark making this same
point. [text and pdf format.] This summary is 35 pages
longs and is being made in PDF format only. This is a one
megabyte file. We wish the Administrative Office would make
the electronic text version of this file available: the
text version would be far smaller. Some excerpts appear
below.
Although judges are not identified in the table, the court
and type of judge is identified. Accordingly, any
communications concerning the comments should be directed to
the Chief Judge of the court with copies to the Clerk, and
if you have the time, to all of the other judges in that
court, and of course copies to the Automation Committee.
HyperLaw Letter to Clerk, Fifth
Circuit Re ABA Citation Proposal, March 21, 1997replying
to the Fifth Circuit letter.. An example of a Fifth Circuit Slip
Opinion shows how closely a Fifth Circuit opinion
resembles a West Case Report. This is a 250 K pdf file.
HyperLaw Letter to Hon Richard
Posner, Seventh Circuit Re ABA Citation Proposal, March 21,
1997 replying to Judge Posner's
letter and Judge Williams'
letter.
HyperLaw Comments to the U.S. Judicial
Comments Re Citation: March 14, 1997
Department of Justice Comments to the
U.S. Judicial Comments Re Citation: March 14, 1997
Selected (Mostly Adverse) Comments from Federal Judges and
Clerks to the Judicial Conference Committee March, 1997
[Other than comments from federal judges and clerks, almost
all bar, agency, and public comments were overwhelming in
favor of the ABA proposal. Other adverse comments are
contained in the table summarizing the response to the
Administrative Office Survey. A letter from Judge Leif
Clark critical of the survey and in support of the proposal
is provided in text and pdf format. The text version contains
other HyperLaw comments.]
George A Vannah (a bankrupcy court clerk?)
writes objecting to the use of the sequence number aspect of
the proposal.
Letter from Frank Dosal, Clerk of the
United States District Court, District of Minnesota.
Surprise of suprise, the judges of the Minnesotat Distirct
Court (source of Mead and Oasis) met on February 26, 1997,
and reached a consensus that the federal court should not
adopt the ABA proposal.
Judge David D. Dowd, U.S. District Court, Ohio, stated
that "I believe citation to the West Publishing Co. reporter
provides sufficient uniformity. Where opinions are also
reported on electronic databases, those service can simply
cite to West as has been done to date." He also, not
knowing that the small practioners overwhelming support the
proposal, and under the misimpression that the citation will
require everyone to use electronic databases, states that
the proposal "would have serious consequences for sole
practitioners and small law firms that cannot afford access
to electronic databases. Requiring parallel electronic
citations for all cited case authorities in briefs, etc.,
would be absolutely cost-prohibitive for such attorneys."
Hon. Norma L Shapiro, chair of the ABA Judicial Division
writes that three judicial conferences that are part of the
division supported the proposal, and three did not. Again,
her comments again indicate a misunderstanding of the
proposals. She states that "This would leave courts that
are not online without precise citation to readily-available
authority. Thus, she assumes that the new cite would not
appear in the book versions -- apparently unaware that West
is and will have to use the paragraph numbering in its
books. Then she states that it is premature because their
is litigation on star-pagination. This is the old "find a
reason to delay": the ABA, AALL, and Wisconsin reports
emphasize that the proposal is intended to provide an
immediately available permanent cite -- and moreover that
even if West star-pagination were in the public domain, it
would still provide preferential advantages to West.
Interestingly, she cc:'d the Conference of Chief Justices.
She does not provide the comments of the three conferences
in favor of the report.
Samuel L. Bufford, Bankruptcy Judge,
Central District of California, wrote in opposition
because he believe that "Numbering the paragraphs after an
opinion is completed is a substantial job." As a basis for
this comment, he attached a "15-step set of instructions"
prepared by his supervisor of training, after the consulted
with WordPerfect. The steps are complicated and involve
using the outline feature to number the paragraphs and other
elaborate steps. His letter proves three things: (1), the
survey should have stated "assuming that paragraph numbering
and opinion numbering could be automated and would not take
more than a few minutes per opinion" (2) that, as HyperLaw
states in its comment, using the automated numbering
features in word-processing programs is doable, but a
complex way to go; and (3) one should not use WordPerfect
tech support for advice on an automation issue that will be
used by thousands of judges. There are office automation
experts out there -- everywhere.
Norman Meyer, Clerk of the Court for the Eastern District of
Virginia, expresses "significant concern regarding the
logistics" in a court with "four divisions spread across
cities 200 miles apart with over twenty judicial officers,
each issuing many decisions on a regular basis." He also
had problems if the system included both published an
unpublished opinions.
He then states that "Ultimately an automated system may be
possible, but I do not see one now."
Meyer's issues are similar to those raised by HyperLaw in
the past and asked that they be dealt with specifically in
the ABA and AALL reports. Clearly, though, the logistic
problem can be solved with automation -- but, that will only
happen if the AO gets ahead of this issue, and stops being
the anchor.
And, in that regard, as I point out in my comments, every
single opinion is already entered into a computer system --
on a daily basis. That is the system that produces the
docket sheets in the Pacer system. I have years of
experience in designing databases, and, indeed, HyperLaw's
database assigns sequential numbers to opinions. The
present docketing system could be easily modified so that
whenever the clerk's staff enters an opinion, to run a
process or sub-program to go to a separate database that
would provide the sequential number. This just cannot be
all that hard.
And, considering that the Administrative Office has been
tinkering with and modifying the docketing system for years,
and considering that sequential numbering of opinions has
been studied in the Administrative Office since at least
1990, one would have thought that careful database design
planning would have anticipated this issue. Who knows,
maybe there is a solution sitting there.
One other comment: his statement makes it appear as if the
District Court considers West's Federal Supplement as its
official reporter. One wonders how the 143 opinions from
the ED of VA published in the Federal Supplement were
selected and sent to West. He states that his "clear
preference, though, is to have the system, if adopted,
clearly exclude trial court unpublished opinions. The
question I have is -- who is deciding what is an unpublished
opinion -- did the ED delegate this to West.
Meyer does not comment upon paragraph numbering.
Harry T. Edwards, Chief Judge of the District of Columbia
Circuit
writes in opposition to the use of sequential numbers, but
had no objection to the numbering of paragraphs "Although I
fear that numbering would have to be done in chambers, and
would create substantial headaches, I imagine that it might
be feasible to accomplish." Judge Edward's expressed a
preference to use the case (docket number) as an identifier.
Most of Judge Edward's concerns have to do with
administrative issues that ultimately could be resolved by a
simple improvement in existing databases, that is the
docketing database. Judge Edwards states that "the us of a
sequential number to identify opinions complicates our
internal operations. Each clerk's office will have to
create and maintain new databases" ... etc. Judge Edward's
is merely pointing out the preference to use the docket
numbers to access information. But, a database table that
has two fields: one the sequential number and the other the
docket number is pretty much a no-brainer system wise. Note
that HyperLaw had suggested that the docket number be
included as well as the sequence number in the standard
citation, to resolve the concerns of Judge Edwards, and to
provide redundancy. But, other felt that this was too
complicated.
Ultimately, all of Judge Edward's could be easily met with
thoughtful enhancements to the present docketing system.
Judge T. S. Ellis Jr., District Judge from the Eastern
District of Virginia
opposes all parts of the ABA citation. He feels that it
fails any cost benefit analysis" (I guess he like 10% yearly
increases in the price of the Federal Supplement). He
states "The ABA should stay our of interfering with judge's
work." "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." I wonder if West Publishing
Company is considered an external organization.
Judge Alfredo C. Marquez, Senior Judge, District of
Arizona opposes the ABA proposal for all sorts of
reasons and starts:
"Developing an alternative citation system I theory might be
desirable, but realistically the proposed alternative,
citing to the Original Order, is of little use to anyone
wishing to read an opinion in published, hard copy form.
West case reporter are commonly and conveniently available
and hard copy court Orders are not. It is inconvenient,
time consuming and expensive to obtain copies of Court
Orders from clerks' offices."
He concludes "I see no reason for the Court to foot the bill
for such an undertaking, especially when the primary
beneficiary inheres to private reporter services."
One would assume that this judge did not read the ABA
report.
Nancy Doherty, Clerk of the United States District Court for
the Northern District of Texas
generally complains about the increased workload, the fear
that he would have to maintain a permanent repository, and
seems to believe that
She states that
"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."
She then goes on to state that "Diverting scarce systems
resources to develop a new information system for opinions
would be counterproductive and costly." This of course
presupposes that what needs to be done is one hundredth as
complicated as he suggests.
She concludes
"I know there is a great deal of interest in getting
opinions electronically rather than through a book publisher
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. West expect many changes because of
the advances in electronic publishing. However, I think the
extra work should be borne by the vendors and not by the
courts."
Chief Judge Procter Hug, Jr (of Nevada)., Chief Judge of the
Ninth Circuit Court of Appeals
writing on behalf of the Court Executive Committee
opposes the sequence number because he prefers the use of
the docket number or case number. He states that "A
citation which does not include the docket number is of
little value." Of course, the West cite never includes the
docket number. But, he felt concern over the need to
continually cross reference sequence numbers to docket
numbers. What is interesting to me, is that neither Judge
Hug or the others making this point explain why this is also
not a problem with the West system Interestingly, when a
case is published in West, no one goes back into the federal
court docket system and enters the West cite. This makes
you wonder what the real problem is.
As to paragraph numbering, "Nor do we favor requiring
paragraph numbering. We believe the court should be
responsible for the text of the opinions and intial page
numbering."
He does not provide any reason for this opposition.
Judge Hug coontnues:
"We do not believe the case has been made for the citation
system proposed by the ABA resolution. We believe the
current "Bluebook" system for citing opinions is an
effective method of citing opinions." One of the fallacies
here is that the Ninth Circuit never uses its own slip
pagination and docket number after an opinion is published
in the Federal Reporter, so, one wonders how serious the
Ninth Circuit Judges are. In addition, I doubt if Judge Hug
has picked up the Bluebook lately and read the new rule in
the Sixteenth edition:
"Rule 10.3.1 .... If the decision is available as an official
public domain citation (also referred to as a medium neutral
citation), that citation should be provided instead. A
parallel citation to the regional reporter may be provided
as well. When citing a decision available in public domain
format, provide the case name, the year of decision, the
name of the court issuing the decision, and the sequential
number of the decision. When referencing specific material
within the decision, a pinpoint citation should be made to
the paragraph number at which the material appears in the
public domain citation. The following fictitious examples
are representative of the recommended public domain cite
format:
Stevens v. State, 1996 S.D. 1, 217
Jenkins v. Patterson, 1997 Wis. Ct. App. 45, 157, 600 N.E.2d
435. "
Interestingly, Judge Hawkins recused himself from this
matter. Does anyone know why?
The Ninth Circuit's slip printer was acquired by Thomson a
few years ago, and of courst that now means that West is the
court's slip printer. Incidentally, should the court wish,
it could have West as the slip printer not only insert the
paragraph numbers, but assign the sequence number to the
published opinions.