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HyperLaw Letter to Hon Richard Posner, Seventh Circuit Re ABA Citation Proposal, March 21, 1997

HyperLaw, Inc.

March 21, 1997

The Honorable Richard A. Posner
Chief Judge
United States Court of Appeals
For the Seventh Circuit
213 South Dearborn Street
Chicago, Illinois 60604

Dear Judge Posner:

[1]     I am more than a little dismayed by your letter of March 3, 1997 to Judge 
Forrester, Chair of the Automation & Technology Committee, 
in which you oppose the ABA citation proposal.  I can only 
believe that the proposal was somehow misrepresented or was 
not accompanied with sufficient explanatory information.

[2]     As a former student of yours at the University of Chicago Law School, I 
am aware of your methodology of economic analysis.  
Certainly, I would have expected you to conclude that 
economic efficiency, for society as a whole, would dictate 
that courts assign citations at the time of opinions are 
disseminated.  The subsequent costs to society based upon 
current practice are inefficient, costly, and ultimately 
lead to limited access by the public to the law.  This 
indeed was understood by John B. West, founder of West, as 
explained by him in a 1909 article, which I enclose.

[3]     In your scholarly writings, particularly in The Federal Courts: 
Crisis And Reform, you have emphasized the role of judge-
made law in judicial decision making.  The opinions of the 
courts are essential to the operation our legal system.  
Your writings exquisitely express the role of precedent.   
Precedent is in a very real sense the law.  At page 248 of 
that book, you argue that law gives people notice as to what 
is acceptable behavior and projects future rulings.  Of 
course, this is purely a theoretical position if the people 
(and I exclude as "the people" here law professors, judges, 
and well heeled law firms) do not have access to the law.

[4]     In your economic analysis of precedent, you clearly recognize that 
uncertainty in case law invites litigation.  See William M. 
Landes & Richard A. Posner, Legal Precedent: A Theoretical 
and Emperical Analysis, 19 J.L. & Econ., 249, 271 (1976).  
To the extent that those who are expected to abide by the 
law face artificial barriers to access to the law, then 
uncertainty increases and economic costs of litigation 
increase as well.  It does little good to clarify the law 
with precedential decisions, and then hide the opinions 
behind barriers.

[5]     I am also aware of the position you had taken on charging for access 
to Seventh Circuit opinions and I believe that the reasoning 
in that order remains sound:

Charging a fee for this previously free 
public information amounts to a confiscatory tax on 
public information. If we had charged nongovernmental 
users a fee during the last year, they would have paid 
$10,800. When compared with the costs to the court of 
about $468 per year, it is obvious that such a charge 
is not a user fee, but a tax on previously free court 
information.

In addition charging such a fee raises serious 
questions as to whether the courts are dissuading the 
many new computer services that have recently started 
to compete with the large companies which have 
traditionally provided the lawyers with legal research 
materials. According to reports in the December, 1994 
issue of American Bar Association Journal at pp. 38-39, 
the Antitrust Division of the Department of Justice is 
looking at barriers to entry in the computer-assisted 
legal research market. The Department is looking for 
ways to improve public access to federal court 
opinions. Our system has no barriers, encourages public 
access, and saves the government money. A fee system 
will cost more than the current nonfee 
system.

In The Matter Of Public Access To The Seventh Circuit 
Bulletin Board System (BBS), Administrative Order, January 
3, 1995.

[6]     The policy reasons to which you refer in the Order are the same that 
underly the ABA citation proposals.  Indeed, last week the 
United States Department of Justice (to which you also refer 
in your order) filed comments to the Judicial Conference in 
support of the citation proposal which explains in detail 
the economic barriers presented by the present system.  I am 
enclosing a copy of those comments.

[7]     Among other things, in your Public Access Order you correctly noted that 
increased cost in one area may in other areas actually 
reduce overall costs.  This is also the situation with the 
use of an immediately available citation inserted by the 
court.  For example, if you wish to cite to one of your own 
opinions, you would be able to use your own manuscript for 
the identification and pin-point citation.  You would not 
need to locate the West version to obtain the citation and 
to attempt to locate in the West version the location of the 
point to which you wish to cite. 

[8]     Even were local costs to increase, it is likely that overall social 
costs would decrease.  Experience with public domain 
citations has established that electronic case law reporters 
are substantially less expensive where there are available 
citable authoritative public domain citations.  Thus overall 
social costs would be reduced.  

[9]     If caselaw research costs were to be reduced, then local costs to the 
court would be reduced, because the cost of research would 
be reduced.  It is interesting to note that the price of 
Federal Supplement where West has a clear monopoly has 
increased enormously in the last two years, even though raw 
material costs, principally paper, have gone down.  The 
following message was recently posted by a Chicago law 
librarian on the law-lib Internet list.

Date: Fri, 24 Jan 1997 15:55:31 -0600 (CST)
From: Frank Drake 
Sender: owner-law-lib@ucdavis.edu
Subject: West Inflation
To: law-lib 

I just got volume 939 of Federal Supplement; the cost, 
including shipping
and tax was $40.61.

Inflation history:

A volume in January 1995 was $33.30

A volume in January 1996 was 36.45

A volume in January 1997 is $40.61

1995-1996 inflation 9.5%

1996-1997 inflation 11.4%

I suppose the figures speak for themselves.

FRANK DRAKE
Arnstein & Lehr
CHICAGO
arnstein@mcs.com

The impact of these on the book acquistion budget, not only 
for the federal judiciary, but for all other agencies and 
departments of the federal government must be enormous.

[10]     Also, there is the issue of first costs, because long term costs will be 
reduced to society because the citation persists for years.

[11]     Many courts have been manipulated into accepting the present system 
because of apparent lower local costs, notwithstanding the 
overall costs to society.  For example, if a court accepts 
discounted access to Westlaw and West books in return for a 
variety of concessions and favors including the perpetuation 
of the present citation system, certainly local costs to the 
court are lower, at the expense of everyone else.  I for one 
do not believe the courts should enter into contracts to 
purchase legal research services and books at prices lower 
than that available to the general public.

[12]     The foregoing analysis is not intended to be comprehensive, but 
is provided only to suggest the possible analysis that could 
be made of these issues.

[13]     In your March 3 letter, you state:

"anyone with the West citation can readily locate the 
opinion on-line if he prefers that to the book 
version."

[14]     This statement raises two issues: one is whether the purpose of 
the proposal was sufficiently explained to you–and there is 
an implication that this is form over substance.  I will not 
address the various policy reasons, because these are 
adequately explained in the other documents which I enclose.  
However, I would like to suggest that you are absolutely 
incorrect if your "anyone" is to be taken literally.  If 
anyone means a law professor or student at the University of 
Chicago Law School, you are correct.  If anyone means a 
federal judge with unlimited access to Westlaw, you are 
correct.  If "anyone" means any lawyer in a large law firm, 
then you are correct.  This class of people probably numbers 
under 100,000 individuals.  But, for everyone else you are 
incorrect.  

[15]     While I was a student at the University of Chicago, the law for me was 
easy to access, thanks to Law School's first class law 
library.  The primary resource that I missed when I left the 
Law School (other than stimulating discourse) was access to 
the law made available by that library. In all of New York 
City, there is no comprehensive law library open to the 
general public without restriction.  As a practicing lawyer 
there are a entire class of cases from middle class clients 
and small businesses that I have turned down for one simple 
reason:  the client cannot afford reimbursing me for the 
necessary on-line legal research.  Legal research costs are 
a particularly factor when the law (including unpublished 
federal district court opinions) of other jurisdictions is 
involved.

[16]     In your letter, you state  that paragraph numbering would "disfigure 
and bureaucratize the opinion-writing process."  I am not at 
all sure what you (and Judge Williams who used the same 
term) mean and this appears to be an uncharacteristic 
exaggeration.  I would assume that you would continue to 
write your opinions the way you have always done so, and 
that upon completion of your opinion writing, it would then 
be paragraph numbered.  If you so desire, and with minimal 
training, you yourself could determine the location of 
paragraph numbers, as described in my comments to the 
Automation Committee.  Interestingly, Judge Williams 
recently decided a case refusing access to caselaw stored 
upon on-line legal research systems maintained by the 
Department of Justice and the United States Air Force.  Yet, 
both DOJ and the Air Force have filed comments in support of 
the ABA citation report.

[17]     As far as disfigurement, the case reports in the West reporters have 
always contained paragraph numbers–although not every 
paragraph receives a number, and no one has ever before 
complained about disfigurement.  Other jurisdictions 
including the Canadian courts, have been paragraph numbering 
opinions for years and, at least to my eye, their printed 
reports do not appear to be disfigured.  In all due respect 
to Judge Williams, his comments about the civil law 
tradition and the FCC is a little emotional, is it not?  Do 
you really contend that the common law system will in some 
way be undermined by courts numbering each paragraph of 
opinions?  I enclose copies of recent West case reports for 
New Mexico and South Dakota which include the official 
paragraph numbers used by those courts.  The disfigurement, 
if there is any, in part depends upon how the numbers are 
set in type.  I hope you do not consider this letter to be 
disfigured becuase it's paragraphs are number, and I have 
selected a supercripted small font to avoid any claims of 
disfigurement.

[18]     In your letter, you endorse the statement of Judge Williams where he 
states:

The purpose of making possible pin [point] citations in 
which no private sector 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.)

[19]     Whether to number paragraph or pages received substantial attention 
from the various committees and individuals who have studied 
the best method of pin-point citation, and, after study, 
there was near unanimity to use paragraph numbers (at the 
academic level, the principal opponent of paragraph 
numbering is a frequent paid West expert witness in case 
citation proceedings.)  There were a number of reasons for 
this conclusion.  For example, some opinions appear in both 
manuscript and printed slip opinion and later bound volume 
format.  When going from one to the other the pin-point 
pagination will change, which would mean that internal 
cross-references would change.  In addition, when 
transferring a word processing version of an opinion from 
one system to another or from one program to another, the 
actual location of the page breaks will change.  Even the 
use of a font in one system that is not available in another 
system will change the location of page breaks.

[20]     In addition, there may even be a question as to what is page 1 of the 
opinion–whether a cover sheet or a table of contents is or 
is not part of the numbered pages.  The only way to provide 
permanent precision for the location of page breaks and the 
page number is to insert a hard page break at the beginning 
of every page, and to also insert the page number at the 
beginning of every page.  Of course, inserting hard page 
breaks in many word processing program may have many 
unintended consequences.  And, the end result still is that 
page breaks appear in the most inconvenient locations, 
perhaps even in the middle of a citation.

[21]     Remember as well that the proposed citation system must also work at the 
district court level where the opinions exist only in 
manuscript form, and must work for opinions that are never 
published in print.  Thus, the district court judges, even 
were your suggestion to be accepted, would have to be sure 
to provide precision and permanence by inserting hard page 
breaks and page numbers–another "bureaucratic" task.

[22]     Moreover, the Internet has already changed the way in which court 
opinions are disseminated.  It is important to use a method 
that works well in the electronic environment, and paragraph 
numbers work better (it is little known that the pagination 
in Westlaw is different than the pagination of the same 
opinion in book form, because of the inconvenient places 
that page breaks tend to fall.)

[23]     Indeed, it is instructive to inspect the Seventh Circuit opinions made 
available on your Court's bulletin board:  those opinions 
contain no hard page breaks.  Moreover, those opinions 
include neither the page numbers of the original manuscript 
nor the page number of the printed slip opinions.

[24]     [The Seventh Circuit bulletin board opinions, unlike those in other 
Circuits:

  
Do not include italicization and 
underlining, not only in citations, but where 
the opinion author may have emphasized a word 
or phrase.
  Do not include indentations which makes it 
somewhat difficult to determine if a phrase was 
quoted.
  Are never corrected.
  Are not supplemented with amending orders.
  Do not include the names of counsel, factual 
information of considerable importance to 
researchers.]

[25]     Reading between the lines of your and Judge Williams' letter, one 
might conclude that you believe that the citation system is 
a theoretical concept that some Administrative Office 
bureaucrats and some techie ABA lawyers dreamed up, so as to 
create new burdens for an already burdened courts.  Nothing 
could be further from the truth.  

[26]     For example, the ABA Committee was not a section committee but was a 
special committee appointed by the President of the ABA at 
the time (Roberta Cooper Ramo, a University of Chicago Law 
School alumna.)  The members of that Committee were 
distinguished practicing attorneys, many of whom had 
experience as judicial clerks.  Judge Danny Boggs of the 
Sixth Circuit (another University of Chicago Law School 
alumnus and a former faculty colleague of yours) was an ex-
officio member who actively participated in the Committee's 
deliberations.

[27]     I hope that you will reconsider your letter.  If you wish, I would like 
to meet with you in Chicago to discuss these issues at 
greater depth.

Cordially


Alan D. Sugarman
Class of 1971