HyperLaw, Inc.
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HyperLaw, Inc.
Alan D. Sugarman

The Committee's mission statement contains conclusory statements that should await completion of the committee's work, and, therefore, should be revised.

The Committee should recommend: an authoritative immediately available citation for court opinions.

An immediately available citation would be essential, even if there were no proprietary claims to citations.

The Committee's primary focus should be on information needed to be conveyed by a citation, not on the form of the citation.

Definitions need to be clear and precise.

A public domain citation is not necessarily a vendor neutral citation.

Paragraph numbers are the best method to pin-point cite opinions.

Docket numbers should be included in the opinion identifier citation.

Court rules (and The Bluebook) should expressly discourage the use of pin-point citations other than the official paragraph number pin point citation.

¶1 The Committee on Citations Issues was established at the 1995 annual meeting of the American Bar Association to "study citation issues of current concern and develop recommendations concerning a citation system which will be broadly acceptable to the bar and to the courts."

¶2 The Committee has asked that comments be submitted in advance of its initial meeting in Chicago scheduled for December 8, 1995. I will be attending the meeting as one of the invited representatives of the American Association of Legal Publishers (AALP), of which I am a director. I am supplementing the comments of AALP with these comments of HyperLaw.

¶3 Note that HyperLaw's comments concerning the American Association of Law Libraries Task Force Report are found in the binder previously submitted by AALP, in THE HYPERLAW REPORT newsletter (also found at http://www.hyperlaw.com). That newsletter contains many other articles directly related to this Committee's work, including a discussion of the merits of paragraph numbering, a 1909 article by John B. West, and excerpts from statements submitted to the Wisconsin Supreme Court. I will not repeat material already covered in that newsletter.

¶4 What is HyperLaw's Interest? HyperLaw has been involved actively in citation reform issues since 1991 and has submitted comments and proposals related to these issues to the United States Supreme Court, the Judicial Conference of the United States Courts, the United States House of Representatives, and the Wisconsin, Washington and Florida Supreme Courts, among others. HyperLaw also has been active in various meetings and electronic forums relating to these issues. We hope that our suggestions will be helpful to the Committee's work.

¶5 HyperLaw has published CD-ROMs of federal case law since 1992—currently we collect, tag and publish over 10,000 federal appellate opinions a year. By comparison, Lexis and Westlaw each load approximately 100,000 opinions a year, of which 60,000 are in the "published category."

¶6 As a publisher of federal appellate opinions, the lack of a public domain pin-point citation limits the usefulness of HyperLaw's CD-ROM for lawyers writing briefs and practicing in the federal courts who need the West Federal Reporter pin-point citation. In 1994 HyperLaw intervened in litigation against West Publishing Company in a declaratory judgment action presently pending in the Southern District of New York. Among other objectives in the litigation, HyperLaw is seeking a declaration that West's claim to a copyright on the internal pin-point pagination of the Federal Reporter is invalid. ¶7

The Committee's mission statement contains conclusory statements that should await completion of the committee's work. The Committee's mission statement contains erroneous assumptions of fact. I hope that after the December 8 meeting, the Committee will reflect upon what may appear as unconscious pre-judgment of important issues.

¶8 The Committee's statement begins with the assumption that that citation reform is a risk rather than an opportunity:

"There is a real risk of citation systems coming into use in the various state and federal courts."

¶9 A more neutral statement would have been:

"There is a real possibility of citation systems coming into use in the various state and federal courts."

¶10 The Committee's statement continues:

"This would increase the cost of making opinions available, and the cost to lawyers and the courts of obtaining these opinions. The result would be to complicate the legal process without any corresponding benefit."

¶11 HyperLaw does not believe there is evidence to support these last statements. Indeed, most evidence is to the contrary. I hope that the Committee will adopt a more neutral statement of purpose until it completes its work. The Committee also should consider the extent to which these conclusory statements may reflect upon the credibility of the work being done by the Committee.

¶12 Proprietary Claims to Citations Are Not the Entire Problem The problems with current citation forms are aggravated by the West proprietary claims to citations, but that is only one of the problems. Whatever the outcome of copyright litigation against West and whatever concessions West may make as to it proprietary claims, the need would remain for reform in the methods of citing to and within legal opinions.

¶13 The West citations are neither immediately available nor vendor neutral nor especially compatible with electronic media. In addition, some have raised concerns that the three largest legal publishers in the United States will soon be in the hands of foreign investors. Although I do not share those concerns, I think the committee should consider whether it is appropriate for courts to yield so much responsibility for citing and initially publishing legal opinions to the private sector. These are public responsibilities over grave matters which should be handled by our public institutions, and not handed over to the private sector.

¶14 Moreover, to cast the debate only in terms of uniform citation, public domain citation, vendor neutral citation, or medium neutral citation will divert the proper focus of the Committee.

¶15 The focus must be upon an authoritative immediately available citation that would be issued by the court. Such a citation would by its nature be vendor neutral and in the public domain. Such a citation would also be medium neutral because an immediately available citation would not be able to rely upon volumes to be printed at a later time.

¶16 I will not repeat the content of the reports prepared by the AALL and the Wisconsin State Bar. These reports are thorough and excellent, but certainly are not the last word on the issues raised. However, many of these issues are not new. It is useful to review the early literature, and in particular the views of the founder of today's largest American legal publisher.

¶17 An Authoritative Immediately Available Citation—John B. West's Vision The Committee should read with care the lucid and practical 1909 article by John B. West, Multiplicity of Reports, 2 LAW LIBRARY JOURNAL 4 (1909) (reprinted in Issue 1 of THE HYPERLAW REPORT which has been provided to the Committee in the AALP binder and which is also available at http://www.hyperlaw.com). Rather than attempt to summarize his article, I hope that the Committee will study the reasons that led him to conclude:

¶18 "In short, each case would be marked and identified unchangeably and unmistakably by one citation, authentic, universal, and immediately available."

¶19 John B. West's article is essential reading for anyone trying to grapple with citation issues. Surprisingly, John B. West did not believe in the efficacy of the system that his company established due to the courts' not heeding his advice. HyperLaw would like to believe that today he would still find valid and valuable the goals that we urge the Committee adopt today. The Committee should focus on Mr. West's reasoning, rather than the particular print–oriented solution that he suggested.

¶20 With the objective to create an authoritative immediately available citation, one would be propelled by logic and convenience to a citation that is in the public domain, vendor neutral, and works well in any media.

¶21 (Parenthetically, other excellent reference materials include the following: the various reports prepared in 1991 by the Administrative Office of United States Courts concerning the ECS (Electronic Citation System); the 1992 Hearing on Representative Barney Frank's bill to amend the copyright law; the complete record of the Wisconsin proceeding including the transcript and submissions to the Wisconsin Supreme Court; the seventeen or so unreleased comment letters presented to the AALL Task force after public release of its Task Force Report, and a law review article. Martha Dragich, "Will the Federal Courts of Appeal Perish if They Publish," 44 THE AMERICAN UNIVERSITY LAW REVIEW 757 (1995)).

¶22 Uniformity, Though Desirable, Should Not Be The Main Consideration. The Committee statement of purpose appears to direct the Committee toward an elusive goal of "Uniformity." Uniformity does not exist today—indeed, for unpublished and yet to be published opinions, there are many types of citations. Not only is HyperLaw concerned about the apparent pre-judgment, but the Committee position statement reflects an over concern with Uniformity.

¶23 The South Dakota Supreme Court uses paragraph numbers for pin-point citation and the Louisiana Supreme Court uses slip opinion page numbers—this lack of uniformity is not likely to "increase the cost of making opinions available" as the Committee incorrectly assumes. Indeed, in Louisiana, apparently the price of CD-ROM versions has gone down, not up, since the new rule was adopted.

¶24 Similarly, South Dakota prefers a sequence numbers and Louisiana prefers a docket number—we also doubt that this lack of uniformity is likely to mean that costs will increase.

¶25 As another example, the AALL did not suggest using a paragraph symbol within the case cite (allegedly to accommodate a correctable computer system deficiency of one vendor) and that South Dakota did use the symbol (we agree with South Dakota). Again, the lack of uniformity, although not preferable, will hardly have drastic, negative consequences.

¶26 We hope that the ABA will focus its attention first on the policy issues and should recommend paragraph numbers. Thus one policy issue for this Committee to decide is whether the use of paragraph numbers applied by the court as pin-point citation is more advantageous to the legal profession than retaining a print-oriented system that is not available until months after the release of the opinion.

¶27 This Committee's statement of purpose, as it were, also makes it sound as if a "Uniform Citation" is the goal. The ABA has not in the past been active in the type of uniformity encouraged by The Bluebook, and I doubt if it is prepared to try to step into the shoes of The Bluebook. The Bluebook has been useful in promoting some level of uniformity so that the same source is cited in a more or less uniform manner by all and so that we do not have variations like U.S. Code, United States Code, U.S.C., USC etc. all for the same source. There is a significant lack of uniformity in citation and the sky has not fallen. If the Committee is seeking "Uniformity," it is looking at the wrong issues.

¶28 The term "Uniform Citation" was not used in the AALL Task Force Report and I believe they were correct. Whatever the Committee concludes, it has no power to enforce Uniformity and indeed no one appears to have this power over the independent courts in this country.

¶29 Thus, this is one more reason for our objection to the Committee's mission statement. If the Committee has already reached the conclusion that non-uniformity will drive up costs and make opinions less accessible, then and if the Committee's objective is to establish uniformity, then the Committee's conclusion is foregone: the status quo works, so keep the status quo.

¶30 We hope the Committee starts over with a fresh agenda and mission statement.

¶31 Vendor Neutral Citations and Competition The Committee should not confuse a Public Domain Citation with a Vendor Neutral Citation. In general, the creator of a citation has a favored market position. Thus, a so-called public domain citation created by one vendor favors that vendor. In situations where one vendor controls the creation of the public domain citation, others must bear the costs and delay of transferring the citation information to versions of opinions obtained from the court.

¶32 We do not agree that the primary objective should necessarily be to create a Medium Neutral Citation as such, although any citation system should accommodate electronic and print media.

¶33 No doubt, others will comment at length about the anti-competitive impact of the present situation. Most commentators who discuss the impact of proprietary claims on citations upon competition seem to focus on competition in case law print reporter, CD-ROM case law reporters, and large case law databases. This analysis misses other significant impacts on competition and also ignores the facts that tight control over case law and the citation to case law not only results in higher prices, but also results in less variety and innovation in products and services.

¶34 Additionally, the present methods of case citation impedes competition (and the variety of products) in secondary source materials such as CD-ROM treatises linked to primary case law information—for example, only West Publishing Company alone can market a CD-ROM on copyright law with paginated primary material drawn from the Federal Supplement and the Federal Reporter. The desire of Matthew Bender & Company to market such a CD-ROM based using Nimmer on Copyright is one factor that led them into litigation against West.

¶35 The present methods of case citation also impede the ability of all publishers to reach the market on an equal basis with annotations and analytic material that include accepted citations. Whoever controls the citation also controls, to a certain extent, the availability and timing of secondary material.

¶36 The secondary industry cannot really move ahead with the written analysis of legal opinions until a useful citation appears. Commercial publishers need to mark time until West's reporters arrive. Fortunately, that is fairly rapid for the Supreme Court Reporter but less so for other reporters. But it is little appreciated by many how much of the annotation and analysis by publishers other than West must await the release of the West paginated advance sheets. This perhaps is one reason why supplements to legal treatises are out-of-date when they arrive from the publisher. Interestingly, when the West advance sheets are released into the market, West has completed its digesting. Most other publishers in practice wait until after the advance sheets are released because they need to use the first page citation and the internal pagination in their analysis.

¶37 Immediate Citations—Needed Even More In An Electronic Era One result of the new electronic paradigm is the immediacy of the delivery of case law information. The natural consequence of electronic media is to speed up the time between the issuance of an opinion, and its receipt by interested readers. By the time paperbound advance sheets or slip opinions arrive, the content of legal opinions is often preceded by an electronic version.

¶38 What is wrong with these electronic versions? In general, these initially released opinions lack a permanent citation to the opinion, and also lack a means to cite within the opinion using a pin-point citation that will be continue to be meaningful after the publication of the print versions.

¶39 What is the practical impact of the delay in availability of citation? The Internet world is becoming flooded with non-citable opinions. These opinions get read, stored in databases, and made available worldwide on the Internet.

¶40 One could say that the immediate electronic dissemination is beneficial—but, of course these opinions cannot be cited in a practical way by those practicing before the courts or those commenting on the cases. These electronically disseminated opinions have a permanence—once they are disseminated on the Internet they are not later withdrawn, updated, or revised, nor are official citations added later.

¶41 This may be illustrated by considering the publication and citation of United States Supreme Court opinions.

¶42 The Supreme Court's United States Reports Through Project Hermes, United States Supreme Court opinions have been electronically available for several years—but one cannot cite to them in a brief or professional article, at least according to The Bluebook. In theory, the slip page numbers could be used, but in practice are used only by the Court itself and by the Solicitor General's Office. Everyone else follows The Bluebook and uses West's Supreme Court Reporter.

¶43 Law schools maintain and feature these Hermes derived Supreme Court opinions on their Internet World Wide Web servers. When the public domain United States Reports citations and pagination become available three years after the opinions are release, these Internet versions are not modified to include the delayed but official pagination (and the corrections made by the Court as well).

¶44 One would think that it would be embarrassing for the prestigious law schools to post versions of opinions (without warning) that are known to have been superseded with an official final version and an official citation. One also wonders why the Justices do not seem to be concerned that the most accessible versions of their opinions do not include the official United States Reports citations and pagination, and also do not include the corrections and refinements which are responsible for the delay in releasing the final versions.

¶45 This situation could be easily remedied by the Supreme Court assigning paragraph numbers to their opinions, and also by including the sequence number that they already internally assign to formal opinions. The Supreme Court has been assigning these internal sequence numbers for many years. (And, needless to say, the Supreme Court should release the final immaculate electronic versions of the United States Reports when electronic versions do in fact exist.)

¶46 I mention the Supreme Court situation partly because some commentators erroneously suggest that the Supreme Court is appropriately providing for a useful public domain citation. Current Supreme Court methodology illustrates the fact that a public domain citation is not sufficient. There is a public domain citation for Supreme Court opinions, but that citation comes out two or three years later. This is long after the opinions have been circulated world-wide, and long after the law professors, constitutional law scholars, and law review editors have parsed out each glistening phrase in lengthy tomes embedded in print citing to an unofficial proprietary citation.

¶47 As John B. West stated in the article referred to previously:

"The importance of an official citation for immediate use in text-books, digests, encyclopedias, etc., is perhaps not sufficiently realized. The works must omit the cases not yet officially reported, or publish them without their official citations."

¶48 Moreover, it is apparent that the legal profession bears hidden costs as a result of the need to use blank citations such as " __ U.S. __" (as well as "__ F.3d__", "__ F.Supp. __", etc.) as opposed to an immediately available citation?

¶49 A Note on Terminology At this point, I wish to explore further the suggestion that the Committee carefully define the terms it will use.

¶50 Terminology drives a debate: we suggest that the Committee spend some time focusing on the definition of terms, and not readily accept the definitions of others.

¶51 For example, the Committee should at all times separately analyze the Opinion Identifier Citation as opposed to the Pin-Point Citation.

¶52 As another example, some refer to a "uniform citation," but, this is term amenable to many interpretations.

¶53 The AALL defined three terms:

Medium Neutral Citation Form—A citation form that may be employed to refer to information in either book or electronic form, without additional information to be added to either.

Vendor Neutral Citation Form—A citation form which may contain medium-specific information, but not vendor-specific information.

Public Domain Citation Form—A citation form that can be used by any publisher, without requiring reference to the proprietary products of any publisher.

¶54 One could and should quibble with the definitions—a Public Domain Citation is a citation as to which no entity claims a proprietary interest, whether the case is published individually, or in a complete set of opinions. Thus, if West claims a copyright interest in the first page citation, but then says that anyone may use it, then it is not truly in the public domain. After all, the copyright filings of West do not disclaim copyright in the first page citation.

¶55 A Vendor Neutral Citation is a citation where no vendor receives a preference by the requirement (by custom or otherwise) of the use of the citation: the AALL definition of Vendor Neutral is not complete. Thus, some "public spirited" vendors have offered to paragraph number the opinions of a court, and to place the citation in the public domain, and have the court make these the official citation. Unless those numbered opinions are available in electronic form to all, it is not vendor neutral. Every competitor of the "public spirited" vendor will have to expend the sums necessary to copy the paragraph numbering into versions of opinions obtained from the court, and, of course the "public spirited" publisher would have the jump on its competition in publishing the opinions. Moreover, the West first page citation can never be vendor neutral, for it confers a competitive advantage to West for the reasons discussed above.

¶56 Clearly, a Public Domain Citation is not necessarily a Vendor Neutral Citation. Additional Definitional Terms

¶57 I wish to suggest two additional terms and a further subdivision in definition:

Immediately Available Citation—A citation that is available immediately upon release of an opinion.

Authentic Citation—A citation certified as authentic by the court or the clerk of the court.

¶58 I also suggest a useful analytic approach: consider and analyze separately the following two components of a citation.

Opinion Identifier Citation—i.e., sequence number or volume and first-page. There are two types of Opinion Identifier Citations:

A Locational Citation—a cite to a particular volume and page of a book or a specific record in a database. A "Where" cite according to West.

A Descriptive Citation—a citation which contains sufficient information about the opinion to permit its location based upon that information. Although West claims this is a Nowhere citation, in practice one may locate an opinion quickly with that information. See HyperLaw's comments in THE HYPERLAW REPORT.

Pin-Point Citation—e.g., the page or paragraph number within an opinion.

¶59 I offer these to help minimize the confusion seen in citation reform discussions where terms are not uniformly defined and used. I also suggest that focusing on each of these elements in a discrete manner will help expedite the work of the Committee and focus the comments received. The Committee will find that many use these terms interchangeably and without precision.

¶60 Paragraph Numbers are Best Available Pin-Point Citation The best method allowing for an immediately available pin-point citation is the use of paragraph numbers, because then the pin-point citation need not await the printing of the opinions in a permanent fashion.

¶61 A paragraph number pin-point citation offers another primary advantage: it works well in the electronic environment and is not cumbersome in the print environment.

¶62 Again, this issue is addressed in the Wisconsin proposal, the AALL Task Force Report, and THE HYPERLAW REPORT. It now appears that West, in its submissions to the South Dakota Supreme Court, conceded the efficacy of paragraph numbers. In addition, if one reads carefully the writings of those who opposed the Wisconsin proposal, one will note that only a very few commentators directly object to paragraph numbering opinions.

¶63 Paragraph numbering opinions is a mainstream trend and is presently in use in Canada and the Court of Justice of the European Communities with none of the catastrophic results predicted by some.

¶64 Finally, the Committee should support court rules that would make the paragraph number citation a sufficient Pin-Point Citation, but would discourage the use of any other parallel Pin-Point Citations.

¶65 An Appropriate Opinion Identifier Citation

I would like to comment as to one other area, and that it what is an appropriate Opinion Identifier Citation.

¶66 The AALL suggests a sequence number and I have objected to the way in which this recommendation is formulated by the AALL. Using sequence numbers is a practical solution in some situations such as citation to the opinions of the Supreme Court of South Dakota with its small number of opinions and the absence of branch or parallel courts at the same level. Indeed, we have recommended and still recommend that the United States Supreme Court do the same for its one hundred or so opinions a year. The best argument in support of sequence numbers is that it permits the identification of missing opinions.

¶67 The sequential system appears less attractive when it attempts to respond to the following:

How does one handle multiple courts at the same level, i.e., the ninety-four United States District Courts, which operate in a relatively independent manner? Is it realistic to expect a single series of numbers for all ninety-four courts? It would seem practical and preferable were each court to assign its own sequencing. This was the proposal submitted to the Judicial Conference in 1991. But, then, the suggestion that opinions may be printed in sequential order would be very complex if each of the ninety-four district courts have a separate sequence number. Will there be ninety-four separate reporters of district court opinions?

If the court assigns the sequence number, how does one handle unpublished opinions? Is a decision to permit a court to assign sequence numbers also implicitly endorsing the position that courts in a democratic stare decisis system have the right to prohibit publication and citation of opinions—a position which is not free from debate. This is why I consider Professor Dragich's work cited above on publication practices in the United States Courts of Appeals to be important to this Committee. There are at least three citations now to an unpublished opinion: the Westlaw cite which includes a Westlaw number and a Westlaw pin-point cite, the Lexis cite with another number and a pin-point cite, and The Bluebook style cite to the print version, which will include the page numbers of the printed version.

If one intends to publish in printed form the opinions in sequential order, what does one do when an opinion is delayed while the court considers a motion for rehearing or is amending the opinion but has not yet released the amendment?

What if courts do not cooperate by assigning sequence numbers or if the court staffs make clerical errors in assigning sequence numbers—a likelihood that increases as the number of opinions and complexity of a court system increases.

¶68 This is the recommendation: if a courts wishes to assign sequence numbers, that is acceptable and should be included in any citation for Opinion Identification, along with the docket number and date of opinion. But, the assignment of sequence numbers is not essential. Opinions can be easily identified by the information specified in The Bluebook rules at present: the Case Name, Court, Docket Number, and Date. In the standard citation to an opinion in a book reporter, the Case Name, Court, and Year of the opinion are included explicitly or implicitly. For example, the citation "859 F.Supp. 743 (S.D.N.Y 1994)" tells one that is a 1994 opinion of the United States District Court for the Southern District of New York. We suggest adding the Docket Number and the Month and Day of the opinion to what is now inherent in the page and volume opinion identifier citation. With that information, the opinion could be precisely located on any electronic system, and, in any print system by use of tables.

¶69 Indeed, what HyperLaw proposes is precisely the approach followed by The Bluebook for unpublished or not yet published opinions. Radical? One would not think so.

¶70 The Committee should recommend court rules that would make a docket number/sequence number citation a sufficient Opinion Identifier citation, although not prohibiting parallel Opinion Indentifier citations.

¶71 Conclusion What should this Committee do? We would suggest as a minimum that it endorse the goal that John B. West set out in 1909 and adopt a policy recommendation that courts assert and assume the responsibility to establish authoritative immediately available citations of court opinions. If the Committee endorses this as a goal, then it will no doubt immediately see that the paragraph numbering of opinions is the only practical way to provide for an immediate pin-point citation. It then could focus on practical ways to identify opinions, accommodating various needs of courts, the public, and vendors and accomodating various technologies.

¶72 Whether Committee members would agree with the proposition that prior to the end of their professional careers books will no longer be the dominant method of distribution for case law, I hope the Committee members will entertain the probability that this will happen after the end of their professional careers.

¶73 This Committee is making recommendations for the future, and whether desirable or not, the future will be predominantly electronic. In the year 2005, I hope that this Committee will be applauded for its foresight. The Committee has the task to take the steps to accommodate the future, and not lock the future in the past.

December 1, 1995

Alan D. Sugarman President HyperLaw, Inc. 17 W. 70 Street New York, NY 10023 212-787-2812 212-496-4138 (fax) sugarman@hyperlaw.com http://www.hyperlaw.com

Comments of HyperLaw, Inc. to ABA Citations Issues Committee December 1, 1995 Page 11 of 13