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HyperLaw Comments Concerning Judicial Conference 1992 Electronic Citation System April 19, 1992

April 9, 1992

Mr. L. Ralph Mecham
Director Administrative Office of the United States Court
Washington, D.C. 20544

Dear Mr. Mecham:

Thank you for your letter of March 27, 1992, responding to my letter of February 28, 1992, and for the copies of the "Standard Citation to Electronic Opinions", Revised Draft Report, dated October 17, 1991, prepared by the Library Program Subcommittee of the United States Judicial Conference Committee on Automation and Technology, and the earlier July 18, 1991, Draft Report.

The "Standard Citation To Electronic Opinions" reports represent a bold and highly significant initiative that could result in fairer access to federal court opinions. Thus, the reports involve important issues of public policy and social equity.

The Subcommittee in the first report mandated pin-point citation; unfortunately, in the second report, pin-point citation became permissive. Is this a mere technical issue of concern only to computer experts and librarians? We think not. This relaxation seriously undermines the basic purposes of the initiative and leaves undisturbed proprietary interests who assert monopoly rights in the current citation system used by the courts.

Circumstance and development in technology have presented the federal courts with a historic opportunity to remedy the past failure of the judiciary to sponsor a non- proprietary citation scheme for decisions of the federal courts. These new circumstances and developments are (1) the advent of court sponsored electronic bulletin boards containing electronic versions of decisions;(2) the electronic publication by on-line legal research systems of decisions prior to their print publication; and (3) the electronic publication by those services of decisions that never receive print publication. Accordingly, the federal courts were faced with the need to create a uniform method to denote computer files containing electronic versions of decisions, so as to minimize the probability of major confusion.

The Subcommittee in its July Report proposed a viable and comprehensive citation format: a unique identifier for the decision and pagination or segmentation of each decision (pin- point citation). The new citation was to be considered an official authoritative citation.

The October Report is far different -- the Subcommittee abandoned the requirement that the electronic decisions contain a pin-point citation, despite the fact the almost all of the disinterested commentators called for pin-point citation as a important feature of any citation system. Moreover, both dominant on-line legal research services include pin-point citations.

Why do these services include pin-point citation? Because, without pin-point citation, an electronic citation would not be accepted by or used by most judges and lawyers, and accordingly would not be commercially viable. This would be like having a telephone directory, but leaving out the telephone numbers.

The proposed official cite, without pin-point citation would be of no use in citing to specific parts of the decision. For example, a practitioner wishing to cite a "published" but yet to be printed decisions still would be forced to utilize Westlaw or Lexis, even if the practitioner had the official court electronic version (most local court rules require pin-point citation). We believe this is against the greater social good. The official court electronic version should contain all of the information necessary for a citation that will comply with local court rules and the expectations of courts and practitioners. Thus, nothing particularly practical is accomplished by this half- way proposal - practitioners who download from the bulletin boards will still need to pay for expensive subscriptions to Lexis and Westlaw.1 The primary beneficiaries of the new proposal will be Lexis and Westlaw - and there will be little practical benefit to lawyers or society as a whole.

We assume that one problem was that the Subcommittee was originally authorized to develop an electronic citation form: in discharging its mission, it developed what amounts to the first official citation system for federal court decisions which would serve electronic and print publication. For the Subcommittee to have reached any other conclusion would have been an exercise in illogic, since, upon reflection, the only difference between electronic and print publication is the publication media. The information is the same; the need for precise citation is the same; the need for permanence is the same. Some, we suggest assumed the Subcommittee overstepped its bounds - but, instead, it merely fully discharged its obligations, and in so doing simultaneously provided a way to democratize access and rights to federal court opinions. We hope that the full Judicial Conference will recognize and support the service performed by the Subcommittee.

This highly important proposal has received little public discussion, notwithstanding the efforts by your office and the publication of a notice last August in the Federal Register. Based upon the responses your August solicitation, many were unaware of the proposal.2 Indeed, based upon discussions at the recent ABA Technology conference in Chicago, many interested professors, lawyers, bar association committee members, court personnel, and others still are not aware of this initiative.

In August, 1991, we were not aware of the proposal; at the time, we had yet to publish a CD-ROM of United States Supreme Court opinions and thus were not on a list of publishers, we were not a part of a law school, and we did not see discussion of the proposal in the general or legal press.

Accordingly, we ask that you provide these comments to the Subcommittee -- as tardy as they may appear.

In the rest of this letter, first we will describe some of the social and policy issues involved. We will then provide further comments to the Revised Draft Response and will follow up with some technical suggestions. Finally, we will request some additional information and action, including a request to make the final report public.

Policy Considerations

The social and economic import of the Subcommittee's proposal is not immediately communicated by the title of the proposal. This proposal has a significant impact upon the equitable access by all levels of society to quality legal representation. The issue is not a narrow technical computer or clerk's issue bereft of wider implications.

The few opponents to this bold initiative have misrepresented the Subcommittee's work as "an attempted solution for a non-existent problem."3

Notwithstanding this self-serving view, there is a problem as to the equitable access to research of taxpayer funded decisions of the federal court. Thus, one needs to balance the concerns of court administrators and those of historic publishers against the benefits to the public, including the lawyers and parties that appear before the courts.

The present situation as to access to federal court decisions is that West Publishing Company has asserted a monopoly in the citation system for opinions of all United States District Courts and Courts of Appeals.4 Some believe this monopoly is perpetuated by the acquiescence and even cooperation of the federal courts.5

Establishing a public domain citation system will open up the publication of citable federal decisions to all publishers, will create competition in the market, and will stimulate the publication of innovative print and electronic compilations and treatises of federal law.6

Establishing a public domain citation system would mean broader and fairer access to federal law at lower costs. Lawyers for all litigants before the federal courts will be able to afford electronic research -- a privilege today affordable only to selected litigants. It is difficult to justify or rationalize requiring low and middle income litigants to pay monopoly prices for quality legal research of taxpayer funded decisions of the federal courts.

Not only will widespread and reasonably priced product be in the greater social interest, but, one might postulate that the quality of the law practiced will increase if attorneys are free from monopoly pricing for research. Rule 11 sanctions against attorneys would not be based upon their clients' inability to afford research of databases. Additionally, access to the courts is in question: because of the increasing use of Rule 11, the financial resources required to conduct computerized research could be argued to be a barrier to the use of the federal courts.

The widespread citation of "unreported" decisions, available only on Westlaw and Lexis, exacerbates the situation, in that only litigants who can afford expensive on-line research have access to these databases.7 This is hardly equitable. Even worse, each of these on-line services is attempting to effect a private non-statutory copyright by asserting contractual limitations prohibiting their users from republishing the decisions, which are in fact public records.

Further Discussion of the Revised Draft Report

The Revised Draft Report, as compared to the earlier report of July 31, 1991, shows that the subcommittee has provided flexibility in two significant areas. The flexibility has the unfortunate effect of perpetuating the monopoly pricing of federal court opinions.

Pin-Point Citation. The requirement of pin-point
citation has been left to the discretion of the local
courts. Pin-point citation would mean that the citation
is not just to the decision, but to a page or paragraph
in the decision. For all practical purposes, a citation
that does not pin-point a precise location in a
decision will not be accepted by a court, is not
practical for legal researchers and is commercially not

Official Parallel Citation. The use of the electronic
citation as a permanent parallel citation has been left
to the discretion of the local court rules. The
Subcommittee concluded that "there is no need to
mandate a parallel electronic citation."

We question this last conclusion that is not substantiated -- we believe the use of the parallel citation should be mandated. Moreover, the Subcommittee has not properly characterized the question. The question is not whether there is a need for a "parallel electronic citation" -- but whether there is a need for a "public domain official citation" equivalent to the U.S Reports citation for United States Supreme Court opinions. If so phrased, then the policy and social issues are open for discussion and balancing against the status quo. The need for an electronic filename standard has merely presented the opportunity to eliminate conclusively the anomaly of the absence of a public domain citation for the federal courts.

Now, let us balance the social and economic advantages of a public domain citation system against the reasons indicated for not now adopting such a system on a mandatory basis.

< It would appear the expressed reasons for non-mandatory use is that each of the courts has adopted technology to varying degrees and that additionally the courts operate independently. In particular, it is stated that the courts use different bulletin board systems and different word processing systems. The most significant burden articulated appears to be placing page breaks or paragraph numbers in the text of the decision. We do not believe that these reasons justify continued accommodation of the existing monopoly at the expense of society.

The initial report, moreover, suggests that only two computer systems are in current use -- and, recognizes that in both cases so-called macros can be designed to automate the process and ease the burden upon the clerks and administrators responsible for preparing the final version for electronic and hard copy promulgation. Were the courts to solicit assistance from the various ABA computer committees, which include some very sophisticated lawyer/computer experts, I am sure that volunteers would gladly lend their pro bono assistance to the courts, under your offices' direction, in accommodating the needs of the court administrators so that the important social goals can be met. Such assistance would be equivalent to the many substantive comments and recommendations provided by ABA Committees over the years as to court rules and procedures.

Rather than yield to the natural reluctance to change (we assume urged on by benefactors of the monopoly), we would suggest that the obstacles be resolved with pro bono assistance of the bar who possess with the necessary expertise to support the court system in meeting the greater social good. If funds are needed to purchase equipment, we suggest requests for additional funding before accepting "assistance" from private publishers who may thereafter be accorded a quid pro quo. For other sources of funds, the Administrative Office might determine if federal agencies are presently purchasing from the private sector files of federal opinions that are in the first instance keyed-in by the federal courts.

Specific Technical Suggestions

Having provided these quite broad comments, we do have a few specific comments on the final proposal.

Citation Format. The Subcommittee has wisely provided
a print equivalent to the alphanumeric computer file
name citation form, for example, 1991 FED App. 0322P
(5th Cir.) as the equivalent for 90A0322P.05. Further
changes are suggested for both human and computer readability.

For human readability, the leading "0" should be
eliminated. Any computer program will be able to
properly insert the leading zero to create the computer
equivalent and vice versa.

For computer and human readability, FED and App. either
should be all upper or all lower case; i.e., Fed. App.
or FED. APP., with a period after FED. The lower case
version is recommended, since we believe it is easier
to scan visually, is more similar to existing citations
formats, and moreover is easier to type.

The space between "Fed." and "App." should be
eliminated. This is useful for computers since
computer indexing systems will index both the "Fed."
and "App." words, rather than the single phrase
"Fed.App.", thus the computerized index would be
smaller. More importantly, it is useful when searching
the databases to search for a single unique term. We
note here the variation of citation form for "F.
Supp." and "F.Supp", whereas "F.2d" is always closed.
These variations create problems in searching for
citations; it is best to standardize by eliminating the
blank space.

Page Breaks. The committee needs to address further
the issue of page break and citation format. First, we
suggest that the subcommittee recommend a standard
citation format for the pagination. For example, the
pin-point citation for page 6 of the foregoing opinion
could be cited as, for example:

1991 Fed.App. 322P, 6 (5th Cir.); or
1991 Fed.App. 322P, p.5 (5th Cir.)

The Subcommittee should mandate a standard page
identification header to appear at the beginning of
each electronic page. For example, the pin-point
citation should appear on the right (or left) margin at
the top of the page (screen) (please, not at the bottom
of the page). An even better scheme would be to
include the short form of the case name, as well at the
page cite. All of this could be automated.8

Non-ASCII Characters. There are certain characters commonly used that are not part of the ASCII character
set: in particular, the [PARAGRAPH] and [SECTION] symbols. The
subcommittee should recommend the alphanumeric
equivalent such as Par., Sec., Secs., etc., for
incorporation in the ASCII file.9 We also recommend
that the subcommittee investigate using another ASCII
based document format other than "plain" ASCII -- for
example, SGML or the Rich Text Format (RTF) format,
which would maintain all text formatting information in
an ASCII format.

Graphic Images. The subcommittee should also suggest a
standard image formats for non-textual image
information such as charts and maps. Because of the
prevalence of fax machines, and the low cost of fax
boards, we suggest utilizing a standard fax format,
since the clerks could fax the graphics into the
court's bulletin board computer. At the present, a
single image standard would be problematic -- however,
were image formats generated by "mainstream" software
and hardware to be specified, then, users could rely
upon commercially available conversion software to view
the images. In any event, images should be captured and
stored and posted on the bulletin board now, whatever
format is used. Ultimately, the courts should adopt an
image standard adopted by the American National
Standards Institute.

Moreover, the subcommittee needs to adopt a file naming
convention for images associated with a particular
decision text file. The only place remaining in the
DOS field name would be to use one of the three
characters in the file extension to indicate a graphics
file. This would require adoption of a multiple-page
image format. Another possibility is to include the
name of the related graphics file in the text file and
for each court to have a sequential numbering scheme
for images. In this case, one could not identify the
decision filename from the image number, but the
decision file would include the image filenames,
preferably at the beginning or end of the decision.

Requested Action By the Administrative Office

It is our understanding that a final report has been prepared, but that the report is not being publicly released. It is not known, therefore, whether further flexibility may have been afforded which would further vitiate the original bold, comprehensive, and intelligent report. Moreover, as amply discussed above, the proposal raises significant public policy issues.

We therefore request that a copy of the final report be
released publicly, and be released directly to the
major legal newspapers and wire services.
Since the initial proposal was in the Federal Register,
it would seem appropriate that the final report be
published therein as well.

Finally, we wish to request that we be provided with certain additional documents:

West Publishing Company communications. We have a copy
of the August 22, 1991, 13 page letter from Dwight D.
Opperman, President of West Publishing Company to the
Administrative Office. That letter refers to earlier
Opperman letters of March 2, 1991 ("a standard
electronic citation system 'is an attempted solution
for a non-existent problem'") and March 14, 1991. We
request copies of those letters. In addition, we
request copies of all other letters and memoranda from
Mr. Opperman, or any employee or representative of
West, to the Administrative Office, or which the
Administrative Office has in its files, which relate to
the proposals, and predecessors thereof.
Shepard's/McGraw-Hill. We have a copy of the
memorandum of Shepard's/McGraw Hill dated August 29,
1991 stating that "solutions should not be recommended
for non-existent problems". We wish to have copies of
other letters and memoranda from such company
pertaining to the proposals and predecessors thereof.
Transcript of September, 1991 hearing. We understand
there was a hearing in September, 1991. We request a
copy of the transcript and a copy of comment letters
submitted thereafter.

We also understand that the Eleventh Circuit has declined to participate in the posting its decisions on a bulletin board. We hope that they will reconsider the issues and that the private bar in that Circuit will provide whatever support is needed to make implementation universal.

In conclusion, we strongly support the October report, except, that we believe that is does not go far enough. We hope that the Subcommittee will revert back to its original course. Rename the report the "Standard Citation to Federal Court Opinions", require pin-point citation, and make the citation permanent.


Alan D. Sugarman President and CEO

1 Mead Data Central (Lexis), however, was very explicit in its support of pin-point citation for the electronic citation format. See page 5 of letter from David A. Berger, Mead Data Central, to the Administrative Office of the United States Courts, dated August 27, 1991 ("MDC strongly agrees with the Subcommittee's recommendation that the proposed citation system provide for pinpoint referencing...").

2 From a review of the 36 responses to the July 18, 1991, report, there appears to be only one response from a member of the private bar who regularly practices before the federal courts. Most responses were from judges, clerks, librarians, publishers, associations of the foregoing, and law professors. Except for West Publishing Company and Shepherd's, other legal publishers supported the report. All of the professors supported the proposal. There was no response from any committee of the American Bar Association. The only bar association submitting comments was the Association for the Bar of the City of New York, which strongly supported the July 18, 1991 report. Of those opposing the report, most were judges and court administrators who were concerned with administrative burdens - we note that few of these mentioned benefits to the public, or even easing the load of clerk's making photocopies of decisions.

3 See letters from West Publishing Company and Shepherd's/McGraw Hill at page 10.

4 See West Publishing Co. v. Mead Data Central, Inc., 792 F.2d 1219 (8th Cir. 1986); Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L.Rev. 719 (1989).

5 Whether the asserted monopoly will withstand a challenge based upon Feist Publications, Inc. v. Rural Telephone Service Company, Inc., No. 89-1909 (U.S. March 27, 1991) is besides the point - the judiciary should take control of the situation and create a public domain citation system, which is still needed for so-called "unpublished" decisions.

6 It is worth noting that the case law of the national courts in Japan, Germany, Switzerland, Spain, Italy, , Canada, and Argentina, and the European Common Market are now available in CD- ROM. With the exception of HyperLaw's United States Supreme Court CD-ROM, there are no comprehensive CD-ROM's of federal case law - only compilations of isolated decisions.

7 Even worse, consider an impoverished civil rights litigant whose adversary cites numerous "unreported" decisions. The federal courts should either enforce "unreported" decisions prohibitions, or should require the party citing "unreported" decisions to fund the cost of the adverse party to conduct equivalent research on the proprietary databases. Even best, is to adopt a mandatory public citation format which will result in affordable CD-ROM's, as well as other print publications.

8 We believe that the most elegant and technically easiest-to- implement pin-point citation scheme is to number each paragraph - but that appears to be too great a change from tradition. However, if some type of pin-point citation is not mandated, it is possible that electronic publishers will adopt the paragraph numbering scheme. It would be better, again, to adopt a standard scheme. We also observe that the reports indicate that the insertion of page breaks can be automated - and, thus, we are not sure why page breaks have not been mandated.

9 The committee should study mandatory requirements to include ASCII codes (generated by macros) to indicate italics and other fonts including superscripts for footnotes. For example, to start italics, and to end italics, using the methodology of the Standard Generalized Markup Language ("SGML"). Thus, casename would, in ASCII, be casename . The RTF equivalent would be {/it casename}. The WordPerfect version would be [ITALC]casename[italc].