March 14, 1997 Judicial Conference of the United States Committee on Automation and Technology In re: ABA Citation Resolution I. INTRODUCTION The Judicial Conference of the United States (Judicial Conference) requested public comments on whether the federal courts should adopt the form of official citation for court decisions recommended by an August 1996 American Bar Association (ABA) resolution and the costs and benefits of such a decision. 62 Fed. Reg. 8037 (February 21, 1997). The undersigned attorneys /1/ hereby provide the following responses to these two questions. II. RESPONSE TO QUESTIONS 1. WHETHER THE FEDERAL COURTS SHOULD ADOPT THE FORM OF OFFICIAL CITATION FOR COURT DECISIONS RECOMMENDED BY THE ABA RESOLUTION. The federal courts should adopt a form of official citation for court cases which is in the public domain. The ABA resolution provides the basis for such a system. It is entirely inappropriate for a private entity such as West to "own" the official citations to government information. Although one could have constructed an economic argument in the 19th and early 20th century in support of a private entity publishing court opinions /2/ we do not believe that such an argument has any force today. Personal computers are widespread in home and office, providing the means for the public to access, read and manipulate electronic information. There are many electronic formats which are easily readable by these computers (e.g., ASCII, WordPerfect, Microsoft Word), and it is easy to convert from one format to another. Distribution of electronic information via the Internet, CD-ROMs, and floppy discs has lowered the cost of "publishing" below that necessary to publish printed reporters. Thus, any economic rationale for private publication of "official" reporters no longer exists. The Judicial Conference should recognize both the tremendous changes in technology and expanded public capability to access information and end the reliance on the West reporter system for official court citations. The proposed ABA system provides the best public domain citation form because of its simplicity and conceptual straightforwardness. We also support the ABA's proposal whereby the courts would assign the paragraph numbers in the opinions. Given the length of many opinions, the lack of pre-designated paragraph numbers increases the possibility that publishers would assign inaccurate paragraph numbers due to miscounting of paragraphs. 2. THE COSTS AND BENEFITS SUCH A DECISION WOULD HAVE ON THE COURTS, THE BAR, AND THE PUBLIC. Because West enjoys an effective monopoly on the citations to court opinions, the federal government (not to mention the general public) is forced to pay monopolistic prices to West. West's monopoly is attributable to several factors. Many federal courts (and a majority of state courts) have designated the West reporter as the "official" reporter and therefore do not publish separate opinions. Further, the local rules for these courts often mandate the use of the Harvard Law School's "A Uniform System of Citation" which designates the West reporter as the preferred citation source and recommends parallel citations to the West Reporter where there is an official reporter. Finally, we note that most law school journals and publications mandate citation forms that utilize the West reporter system. Therefore, everyone -- the federal government, a member of the bar and the general public -- must use either the West reporter or a reporter whose publisher has negotiated a license for use of the West citation, in order to provide proper legal citation to court opinions /3/. In sum, the legal profession has developed to the point where an inherent part of the legal function requires access to the West reporters. West is therefore able to charge -- and all end users are forced to pay -- monopolistic prices for access to the West reporters. We do not regard the availability of the text of court opinions on the Internet or through private information services (e.g., Lexis, Counsel Connect) as posing a viable alternative to the West reporting systems. Most of these Internet sites and services do not include the West page citations. Thus, they cannot be viewed as being complete substitutes for the West reporters. Further, since the few services that provide West citations do so because they have negotiated a license and payment of fees to West, such services are at a distinct competitive disadvantage compared to West. Some commentators suggest that the West "Key Number" and digest system provide significant information that the ABA citation system would not. However, adoption of the ABA system would in no way diminish access to West's "Key Number" and digest system. Those who believe that West's system provides useful value-added information can continue to purchase this information from West. The marketplace will decide whether there is commercial value in the West key number and digest system; West should not be allowed to enjoy the unfair advantage of having their citation system as the "official" citation. We concede that the federal government (and therefore the taxpayer) will be required to pay for both the increased costs of federal courts for preparing their opinions for use in a non- proprietary, public domain citation system, and making these opinions available to the public. However, these costs can be controlled in part through: (1) the development of software for automated paragraph numbering of court opinions, (2) development and implementation of database systems for automated tracking and numbering of opinions as they are issued, and (3) using electronic bulletin boards and Internet sites for allowing low-cost access and dissemination of court opinions. In any event, we believe that the judicial function constitutes an essential government function, that court decisions are the intended product of the judiciary, that the public is entitled to access to court decisions, and therefore the costs of placing court decisions in the public domain in a form which maximizes its dissemination to the public should be borne by the public. There will be some impact on the courts and bar in a transition to a new citation system, since judges, attorneys and support personnel will have to learn the new citation system (even though it is a relatively straightforward system). However, we do not see that the necessary training will impose large costs or involve substantial amounts of time. We also believe that the general public will also benefit from the use of a non-proprietary, public domain legal citation system. Many members of the public follow legal developments in a specialized area. Their narrow field of interest and limited resources do not permit the purchase of a subscription to either Westlaw or a West reporter. Nonetheless, their ability to follow recent legal developments is important and contributes significantly to informed public participation. For example, one of the undersigned has a neighbor who is very interested in right to choose death issues. She serves on an advisory board and has spoken in forums as far away as Japan. She is retired and her income does not permit her to purchase West service for this specialized nonincome-producing use. Hence, she must go to the library in order to read the West reporters, and to obtain the official citations for court opinions. Since she is quite old, it is an unnecessary hardship in winter for her to drive to a library to access the West reporter and obtain the official citations, when the opinions could be accessed and citations obtained at home, absent the West proprietary citation. III. CONCLUSION We urge that the Judicial Conference endorse the system of citation for U.S. court cases developed by the ABA. Respectfully submitted: Steven F. Crockett Dennis C. Dambly Grace H. Kim Henry J. McGurren Geary S. Mizuno, gsm@nrc.gov, (301) 415-1639 Marjorie S. Nordlinger Susan L. Uttal Robert M. Weisman FOOTNOTES /1/ The attorneys are employees of the United States Nuclear Regulatory Commission (NRC), an independent federal agency. However, the views expressed here are the views of the undesigned attorneys, and do not represent the views of the NRC. /2/ Presumably, the argument would have been based on the large cost to the federal government (and therefore the taxpayer) of publishing official court reporters and the absence of private commercial interest in publishing court opinions absent reasonable assurance that they could recover their publication costs; this assurance would be provided to the commercial publisher by denoting its publication as the "official" reporter, thereby securing a market for the publication. /3/ The availability of slip opinions published by the courts and the availability of court opinions through legal information services other than West (e.g., Lexis) do not fundamentally argue otherwise. In both cases, the lack of the West citation limits the usefulness of the slip opinion or computer printout since they cannot serve as a basis for an official legal citation. We also note that West's own legal information service -- Westlaw -- until recently did not provide page breaks in the computer screen display and printouts of opinions which correspond to the pages of the published West reporter. This significantly reduced the user's ability to substitute a subscription to Westlaw for a subscription to the relevant West reporter. END OF FOOTNOTES