Return to HyperLaw Home Page


HyperLaw and West Publishing Agree: "Docket Numbers are an important element of citation" But West's "Nowhere Cite" is the "Nowhere Fallacy."

Alan D. Sugarman, The HyperLaw Report July 16, 1995, Volume 1, Issue 1.

Copyright 1995, HyperLaw, Inc.

Amidst complaint from friend and foe alike about the participation and process of the Report of the AALL Task Force on Citation Formats, the Report has still brought a needed focal point for the debate on the reform of citation systems and the development of a so-called medium- and vendor-neutral citation, an essential element in the electronic dissemination by courts of authentic and citable opinions.

¶2 The task force recommendation that "all jurisdictions begin to number their decisions by paragraphs, and encourage citation to paragraph numbers" met with general approval and endorsed the consensus reached by public interest groups and some private publishers at the Taxpayer Assets Poject (TAP) hosted meetings of October 19, 1994 and December 12, 1994.

¶3 Paragraph numbering as a method of pin-point citation is now inn use by courts in the EEC, Canada, and Colorado and by the United States Court of Appeals for the Armed Forces, and has been in use by a number of independent publishers of CD-ROM caselaw for years. In addition, an organization of reporters of opinions, although not seeing the need of paragraph numbering existing official reporters, endorsed the concept that where there was no official reporter, "paragraph numbers may be added by the court in the opinion."

¶4 Less consensus appears to exist as to the means of citation to the opinion itself, and, in a dissent, the Reporter of Decisions of the State of New York pointed to the problems of implementing the sequential numbering scheme in a state with complex multi-layered courts. West Publishing Company, which some have pointed out does not always speak with one consistent voice, appears to wish to maintain its dominant position by having its initial page citations from the National Reporter System remain the official and semi-official citation.

¶5 The West position ignores the fact that a volume and page citation must await the release of the printed volumes, creating a delay in availability of the citation and providing in addition a market preference to whoever provides the volume and page initial citation.

¶6 Although West is deservingly proud of its illustrious history, its 1995 position is inconsistent with the views of its founder John B. West, who wrote in a 1909 article that the citation should be available at the time of issuance of the opinion [see Multiplicity of Reports, by John B. West, page 4 herein]. Indeed, Mr. West himself proposed a sequential numbering system. Thus, to an extent, all those who are saying there is no problem if West lets others use its first page citation miss the point-the West citation does not appear for months and imposes costs on those who wish to use the cite during that period of delay, and in general, acts to delay the appearance of annotations and explanatory material.

¶7 West has stated, and HyperLaw agrees, that docket numbers convey important information, are an existing identification system, and should be included in any new citation method. The docket number has always been included in the Bluebook citation format for unpublished and yet reported opinions, for good reason. HyperLaw suggests, however, that where someone is prepared to maintain sequential lists of opinions issued by a court, that a sequence number may be included as well.

¶8 The sequence number scheme proposed by the Task Force, indeed, does not meet many of the Axel-Lute criteria-although providing uniqueness, it provides no redundancy, is not informative, and has little similarity to the original. In building a system that will work through a transition period of perhaps a decade, docket numbers are essential.

¶9 However, we do not agree with West's reasoning in support of the primacy of volume and page citation. That reasoning can be described as The Nowhere Fallacy and is nothing more than an effort for West to maintain its hegemony.

The Nowhere Fallacy

¶10 The Task Report apparently suggests the purpose of a citation, that is then distorted by West. The Task Force states at Paragraph 20 that: "The primary purpose of legal citation form is to direct the reader to a source of the information referred to by the author."

¶11 West, in its dissent at page 34, distorts this statement so as to apply the term "Nowhere Cite" to the sequential numbering system, reasoning that because the sequential cite does not point to a specific location, it points to nowhere. This is The Nowhere Fallacy.

Citations to Data Sets

¶12 A legal citation form needs only provide the minimal information needed to locate a, not the, source of the information. In other words, a citation is a citation to information, not to a particular book, database, or CD-ROM. A citation does not need to point to a single physical source. A citation only needs to identify the "sets" of data to which the information belongs. To the extent that citation to a physical source provides a measure of authenticity, we suggest that authenticity will in the future be provided by electronic signatures by the court.

¶13 For example, the case Courtney v. Bisound, No. 93-3733, Dec. 13, 1994, 42 F.3d 414 (USCA 7th Cir.) belongs to the following overlapping sets of decisions:

• All decisions ever of the Seventh Circuit

• All opinions of the United States Court of Appeals issued in 1990-1994.

• All published opinions of federal appellate and district courts in 1994.

• Volume 42 of West Federal Reporter 3rd.

• The West CD-ROM containing Volume 42.

• The ALLFEDS Westlaw database.

• The 7CIR File of the GENFED Library of Lexis.

• All ADEA opinions (if one knows the general subject matter of the case).

¶14 Given the inherent citation information, that is the name, docket number, court, and date of decision, the reader is able to identify which sets of information should have the decisions, and then locate that information in the appropriate set.

¶15 Indeed, it is HyperLaw's view that this inherent citation information uniquely identifies the decision, and, indeed, should be a part of any citation system. (It is for that reason that HyperLaw has proposed a general set of SGML/HTML tags for that citation information—to be generally identified as the LTMLtm, Legal Text Markup Language.)

¶16 We think that West is wrong, and self-serving as well, to attempt to imply that locational citations are inherent—certainly, they are less so as we move into the cyber age. Information will reside in multiple locations and the challenge is to establish accuracy and authenticity. In the end, it will be up to those publishing legal decisions to provide the finding aids to assist in locating decision based upon the inherent citation information.

¶17 Thus, we feel that West's "nowhere citation" is merely an illustration of the "Nowhere Fallacy"-appealing on first impression, but devoid of merit after thought.

Docket Numbers v. Sequence Numbers

¶18 The Report is dismissive of alternatives to the sequential number citation for identifying cases and in particular the use of docket number in an alternative citation format. The report exaggerates disadvantages to the use of docket numbers, and ignores the problems with sequential numbering in jurisdictions with multiple levels and multiple courts per level.

¶19 Partly the question is what is the problem to be solved: certainly, high among the problems is the absence of official citations for the decisions of the 94 (sic) district courts, bankruptcy courts, and courts of appeals. In terms of size, the largest state without an official citation is Texas. To a certain extent, the practicality and usefulness of a proposed citation alternative should, we argue, be judged to the extent that it resolves the largest known problem, i.e., decisions of the United States district courts. In addition, given practical realities, the system must also accommodate to the extent possible known accepted publications such as the West Federal Supplement.

¶20 In all due respect, we are having a difficult time visualizing a Federal Supplement with ninety-three separate entries on the spine to account for the sequential numbering of each of the district courts. This would then argue for a central entity to assign the sequential numbering for all of the courts, i.e., the Administrative Office of the United States Courts. Moreover, this would then require federal district court judges and clerks to designate in an open and official way which decisions were to be published, something that does not occur today.

¶21 Of course, it should occur, and perhaps we believe it will occur some day . . . but not in the immediate foreseeable future. So, the quest of sequence number identification is not practical until other issues are resolved such as Federal District Court opinion bulletin boards, on or off the Internet.

¶22 In the shorter term, and, perhaps as part of the long term, the use of docket numbers as part of an alternative citation would seem to be most useful for the following reasons:

• It is a unique number (as to a court) already assigned by the court.

• No additional action by the court is required in order to create the case identifier.

• Citation to older cases is possible.

• Redundancy is provided.

• Citation to unpublished cases is possible.

• It provides an immediate indicator of a relationship amongst orders, rehearings, etc. in the same case.

¶23 We note that the new Louisiana Citation includes the docket number, and we have been advised that one of the major reasons for the demise of the 1991-1992 U.S. Judicial Conference proposal was its eschewal of docket numbers as part of the citation.

¶24 What are the disadvantages to docket numbers according to the Task Force Report:


We do not understand this objection. A citation system should work equally well for published and upublished opinions. One problem with sequence number is that in most courts they will only be assigned to published opinions.


If this means that there is no way to identify a complete "set" of opinions, the Report is correct.


But in general they are not, and then again, so what. Also, examples of the long numbers creating this problem would have been useful.


True, if jurisdiction means "federal district courts," the Report is correct. Not true if "jurisdiction" means "The United States District Court for the Southern District of New York." Surely, the Task Force is not suggesting a citation to federal district court cases that does not somewhere indicate the court.


True, for precision. However, the report itself already suggests that the addition of a date to amended and corrected versions for sequence number identified opinions. (We believe where a sequence number is used, the version of the opinion should be indicated by an additional suffix—otherwise, there is no way to establish what version of the document is being cited.)


There is already continual revision of these products, which is what supplements are. In any event, CD-ROM is to be sure the best method of presenting accessing this type of citator information.


This is, in our view, not true if "do not work" means "could not be made to work for future opinions or in the future." It is our understanding that the usefulness of accessing case information by docket number was well understood in the legal electronic publishing industry by 1990.

¶32 Westlaw elected to allocate resources to make its decisions accessible by docket number, and announced that at the October 19, 1994 TAP meeting. Shepherd's CD-ROM products include docket numbers for slip opinions and are considering maintaining the docket numbers of opinions after the availability of citations to printed sources. It appears that Lexis has not addressed this problem known to it for years and it is not known whether it is now taking steps to correct the problem for the future.

¶33 When HyperLaw released it's Federal Appellate CD-ROM, it made certain that opinions could be precisely and quickly located by using the docket number and the court (and also to locate the opinion by the Federal Reporter citation where one is available, and of course, these cites are not available for unpublished opinions). There is nothing about a docket number that makes it inherently non-searchable. In considering what citation format is most sensible, the particular concern of Lexis should not be a determinative factor. Were Lexis to lose out to Westlaw because of the technical superiority of Westlaw, then, that is the way the market is supposed to work. The AALL should not meddle in the market in this respect.

The 8-3 File Name Fallacy

¶34 There is, we believe, another unexpressed basis for objection to docket numbers in citations and preference for a sequence number: a perceived need to be able to include all citation information in the 11 character "8 dot 3" file names of MS-DOS. We suggest that for some one of the attractions of the Wisconsin-style sequence number system is the ease of using that number as the file name on the bulletin boards to be set-up by the proponents of the scheme.

¶35 It appears that 8-3 was part of the reason that sequence numbers to the exclusion of docket numbers was the basis of the 1991-1992 Judicial Conference scheme. This was discussed in 1991, and West, to its credit, pointed out the foolishness of designing a citation system around computer file name length limitations that may not continue to exist.

¶36 Indeed, on August 24, 1995, with the official release by Microsoft of Windows 95, the 11 character limit for all intents and purposes will be on its way out. Thus, one could easily have a computer file name/citation such as


or whatever else one desires.

HyperLaw Partially Agrees with West

¶37 Accordingly, HyperLaw is in partial agreement with the statement made by West Publishing Company in "Case Citation Formats: The Need For a Goal-Oriented, Principled Approach," Donna Bergsgaard and Bill Lindberg, October 19, 1994:

"West believes that the best medium and vendor-neutral citation is the docket number. It has been reliably used for over a century and has the greatest potential for use with new technology such as electronic filing."

¶38 In addition, HyperLaw is in agreement with the following statement made by West in the same Bergsgaard/Lindberg statement:

"Docket numbers serve as fundamentally sound units for citation because they are assigned when a case is filed (not at the end of the judicial process, when an opinion is filed). Docket numbers are used in both trial and appellate courts. In virtually every system for caseload management, electronic filing, and electronic dissemination of opinions, the docket number serves as the one key for access to all information about the case. Thus, docket numbers permit citation to a complaint, answer, deposition, motion, brief, or any non-final disposition of the case, regardless of court level[14]. On the other hand, systems such as the one proposed in Wisconsin fail to account for the need to cite documents associated with a case from filing to final disposition, whether at trial or on appeal. Moreover, they make sense only where opinions are routinely reported."

¶39 Where HyperLaw departs slightly from West is the desirability of using sequence numbers where such are available and have been assigned by the court. An example is the United States Supreme Court, which internally assigns a sequence or "R" number to each opinion published at the time the opinion is disseminated. That sequence number should be released by the Court, included on the slip opinions, and made a part of a permanent alternative citation. As another example, the Louisiana scheme presently uses the docket number—it is highly recommended that the court assign a sequence number that would also be included in the official citation.

¶40 This is not to say that sequential numbering of opinions is not meritorious, especially because sequential numbering permits compilers of opinions (whether in book, on-line, Internet, CD-ROM) to ascertain completeness of a set of opinions. Of course there are other ways to describe completeness, including maintaining a log of opinions released, but there can be no doubt of the utility of sequence numbers in that regard.

James A. Sprowl Describes Purpose of Sequence Numbers - Not for Cite

¶41 James A. Sprowl, noted expert since the 1970's in the field of the law and computer, in his recent comments to the Wisconsin Supreme Court, wrote:

"Accordingly, I suggest that you number your decisions sequentially. You do this not for the purpose of creating a uniform system of citations, but rather to make it possible for an attorney, judge, or auditor to review and audit the completeness of any published collection of cases."

¶42 Thus to provide a basis for establishing authenticity and completeness, sequence numbers are invaluable-for redundancy, cross-reference, and informativeness, the docket number should be included as well, permitting a public domain citation even where a court is not cooperative or unwilling to assign responsibility for sequencing of opinions.

AALL Should Adopt Focused Goals

¶43 HyperLaw believes that the AALL should, in addition to pursuing broader proposals, make specific recommendations and should focus on specific problems. West complains of the lack of empirical investigation: we agree. The AALL should look into the deplorable situation relating to the method in which federal district court opinions are disseminated and the way in which existing practices provide favoritism to a single publisher. In addition, the AALL should make a specific focused recommendation to the nation's highest court to reform its practices to begin immediately to insert paragraph numbers, to provide publicly its sequence number to use in citation, and to electronically disseminate the existing versions of the Preliminary Print of US Reports.

Copyright HyperLaw, Inc. 1995