Citation Software

January 4th, 2016

Citations and Software – A Long and Vexed Relationship

Hat tip to the team responsible for Blueline (http://blueline.blue/), who suggested a post on the love-hate relationship between programmers and The Bluebook.

They have discovered, as others have before, how challenging it is to create software that will identify all the legal citations in a document and do something to or with them. The trail, dotted with patents and patent applications, is a long one, stretching back to the 1980s when a pair of Harvard Law School grads established a software enterprise they called Jurisoft. By 1986 Jurisoft’s offerings included CiteRite, list price $395, very likely the first successful PC program focused on the professional rather than business side of law practice. CiteRite would scan a brief for citations and generate a report enumerating all failures to conform to Bluebook format. In short order, Jurisoft was acquired by the parent company of Lexis. By 1990 the Jurisoft line included a companion program named FullAuthority, which to quote one reviewer had the “smarts” to do the following:

All you have to do with FullAuthority is tell it the name of the text file on your computer that contains the legal citations. It will zip through your document, tracking each legal citation like a bloodhound. When it has rounded them all up, it will organize them into groups. These groups may include cases (with separate categories for state and federal cases), statutes (with separate categories for state and federal statutes) and other authorities.

Together CiteRite II and FullAuthority comprised Jurisoft’s Citation Toolbox.  Their system requirements are a stark reminder of the computer environment of the early 1990’s:

IBM PC or compatible, MS-DOS 2.0 or higher, 250 kilobytes available memory, hard disk recommended

In the early 1990s both major online providers were moving toward hyperlinking some of the citations that appeared in their collections of judicial opinions, which, of course, required them (and all subsequent competitors) to have sophisticated inhouse tools for identifying and manipulating citations.

In time Word replaced WordPerfect as lawyers’ preferred word processing software and Dakota Legal Software brought out a Word add-on designed to compete with the Jurisoft programs. Lexis acquired its technology as well and folded it into the company’s Lexis for Microsoft Office. Today, that package, like the comparable Drafting Assistant from Westlaw, performs cite-checking, quote-checking, and citation linking in addition to format review and table of authorities compilation.

Both major vendors also have, included as part of their latest generation systems, a copy-with-citation feature purporting to furnish a properly formatted citation (in any one of numerous formats including the distinctive non-Bluebook variants employed in California. Michigan, and New York).  They were reviewed in an earlier post.

Citation tools operating outside and apart from Westlaw and Lexis continued to appear. Although maintenance of the CiteIt! software appears to have ended over a decade ago, the product’s features are still on display at: http://www.sidebarsoft.com/. Another product, CiteGenie, held its ground until WestlawNext’s copy-with-citation feature effectively supplanted it. And, for a time, Jureeka! offered those reading citation-filled documents on the open Web a browser add-on that would converted plain text citations into links. Now along comes Blueline.

Some Reasons for Programmers to Love The Bluebook

Whether designed to review a document for citation format compliance, to check a citator for authority undercutting cited decisions, or to compile a table of authorities, verify the accuracy of a quotation, or generate a link, citation software must first identify which of the diverse character strings found as it scans a document constitute citations and not addresses, part numbers, or radio station call letters. If citation format were uniform across the United States, if judges in federal and state courts and the lawyers submitting documents to them conformed their citations of authority to a common standard presented in a consistent format, the job would be an easy one. The Bluebook, with its claim to offer “a uniform system of citation” (a phrase its proprietors have trademarked), purports to be just that. And so it is within the universe of academic law journals. Complex though it may be, to the extent that the citations in U.S. law writing conform to The Bluebook the programmer’s job is relatively straightforward. To the chagrin of those attempting to construct citation-identifying algorithms, however, courts in the fifty U.S. states have quite diverse ideas about citation norms. Often they are focused narrowly on the legal authorities most frequently cited in cases coming before them. The Bluebook specifies that Indiana Code sections be cited in the format “Ind. Code § x-x-x-x” and those of the Idaho Code as “Idaho Code § x-x”, but when judges and lawyers in Indiana cite code provisions to one another they often cite to I.C. § x-x-x-x; just as those in Idaho cite to I.C. § x-x. Generally, the federal courts and those practicing before them take a less parochial view when citing state authorities, but they are far from consistent on some very basic points. The Bluebook has it that a provision in the Code of Federal Regulations should be cited: “x C.F.R. § xxx.xx (year)”. The U.S. Supreme Court favors “x CFR § xxx.xx” (no periods, no date) but is not followed on this point by most lower federal courts. (Those at Blueline claim their citation analysis suggests “that Republican appointed judges typically cite the U.S. Code as ‘USC’, whereas Democrat appointees prefer ‘U.S.C.'”) Approaches to compressing party names and citing treatises are all over the place.  The same holds for abbreviations of the several sets of federal procedural rules as cited in briefs and court opinions.

A citation reform movement of the last two decades has called for courts to break away from print-dependent case identifiers through the attachment of vendor and medium neutral citations to their decisions prior to release. Building on recommendations of the ABA, the American Association of Law Libraries (AALL) prepared a detailed implementation manual. It carries the title AALL Universal Citation Guide and provides a modern blueprint for uniformity. No surprise, several of the states adopting the new approach have deviated substantially from it. How does The Bluebook address the resulting lack of uniformity? Its Rule 10.3.3 instructs that “the requirements of the jurisdiction’s format should be observed.”

As the folks at Blueline put it “the approved and unapproved variations in Bluebook style create a huge hurdle for coders who rely on hard and fast rules.”  Weak force though it may be, The Bluebook does offer a template for citation recognition on which programmers can begin to build. Deviations from its “uniform system” can be then treated as special cases or alternatives.

Grounds for Programmer Frustration with The Bluebook

Were all judges and lawyers to follow The Bluebook meticulously, would programmers be satisfied? Not so long as its citation rules remain stuck in print-era conventions. Volume and page number are far less precise than “2015 IL 117090, ¶ 31” which points to a single paragraph (straddling a page-break) in a uniquely identified decision of the Illinois Supreme Court. Decided this past January, the decision only later received volume number and pagination in the National Reporter System. Yet The Bluebook directs the passage in question be cited by the latter formula (unnecessary, delayed, and less exact). Page numbers can even yield ambiguous results. A Blueline communique reports that “a query intended for Peate v. McCann, 294 F.3d 879 (7th Cir. 2002) accidentally pulled McCaskill v. Sci Management Corp., 294 F.3d 879 (7th Cir. 2002) because the latter opinion was only 44 words long.”

The Bluebook‘s deference to the major online services, particularly when dealing with the increasingly large pool of “unpublished” decisions, is another problem. A single decision is known as “2015 BL 377979” on Bloomberg Law, “2015 U.S. Dist. LEXIS 155224” on Lexis, and “2015 WL 7253819”.  Google Scholar and other public access sites have the decision but don’t know it by any of those designations. No citation parser can establish the identity of those references or match any of them to a non-proprietary version of the case. Situated as it is in the academy, a domain handsomely served by the major commercial systems, The Bluebook fails to address this problem adequately, and its deference to the commercial sector leads to a strong bias in favor of publisher-specific citations.

That same bias combined with The Bluebook‘s continuing attachment to print leads to rules for statutory and treatise citations that are not followed uniformly because in the current practice environment they simply cannot be.

(internal quotation marks omitted)

November 5th, 2015

The Bluebook Change

Hat tip to Eva Resnicow, aka Editrix Lex, who brought this Bluebook change to my attention.

Since the eighteenth edition, The Bluebook has included “(internal quotation marks omitted)” among the parenthetical expressions listed in Rule 5.2. That is The Bluebook rule addressing the broader question of how to signal any number of alterations a writer might make to a quoted passage. Similar parenthetical notices to be appended to citations as appropriate include “(emphasis added)” and “(citations omitted).” Prior to this year’s twentieth edition, The Bluebook itself provided no guidance on when a writer could or should omit internal quotation marks. It merely specified how to report their removal. However, a “Blue Tip” posted to The Bluebook site in 2010 addressed the “when to omit” question. In essence it called for the omission of internal quotation marks whenever the primary quoted material consisted entirely of an embedded quotation. “In all other cases,” the tip advised, “include all internal quotation marks.”

Although less clearly expressed, the twentieth edition has added comparable directions on when to omit internal quotation marks to The Bluebook proper. At the same time, it has removed the “(internal quotation marks omitted)” parenthetical from Rule 5.2’s roster. There is no ban on its use. The phrase has simply been deleted from 5.2, presumably, on the ground that it is unnecessary. Added to 5.2 is a new paragraph (f)(iii) which directs (as Bluebook editions reaching back as far as the fourteenth have advised) that a parenthetical identifying the source of the embedded quote be appended to the citation of the passage in which it appears. Arguably, that identification of underlying source provides adequate notice that the quotation is derivative. The revised rule is also as emphatic as the Blue Tip was before that interior quotation marks should be retained in any case where the embedded quote makes up less than the entirety of the primary quoted passage.

An Illustration of the New Rule’s Effect

A note published this past June in the Harvard Law Review contains the following passage, footnoted as shown:

Expansive though it is, the President’s enforcement discretion is not limitless. In the OLC’s analysis, legal constraints on nonenforcement derive ultimately from the Take Care Clause24 and are spelled out in a series of judicial opinions following a focal 1985 case, Heckler v. Chaney.25 The Opinion interprets this case law as standing for four general principles: (1) enforcement decisions must reflect “factors which are peculiarly within [agency] expertise”;26 (2) enforcement actions must be “consonant with … the congressional policy underlying the [governing] statutes”;27 (3) the executive cannot “‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities”;28 and (4) “nonenforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis.”29


24. See id. at 4 (locating the President’s enforcement discretion in his constitutional duty to “take Care that the Laws be faithfully executed” (quoting U.S. Const. art. II, § 3) (internal quotation marks omitted)).
26. The Opinion, supra note 3, at 6 (quoting Chaney, 470 U.S. at 831) (internal quotation marks omitted).
28. Id. at 7 (alteration in original) (quoting Chaney, 470 U.S. at 833 n.4) (internal quotation marks omitted).

Had this note been prepared and published under the twentieth edition, the parentheticals appended to notes 24, 26, and 28 would be gone. Observe that the passage appearing in clause (3) includes internal quotation marks. The marks that the author omitted are those showing that the quotation from the Office of Legal Counsel opinion, to which the “Id.” refers, was itself a direct quote from the Chaney decision. The retained marks appear in the quoted Chaney passage and are attributed in it to a D.C. Circuit opinion. (Bluebook Rule 10.6.2 provides that “only one level of ‘quoting’ or ‘citing’ parentheticals is necessary.” Note 28’s failure to identify the source of the embedded quote is, therefore, in compliance. Also in compliance is the parenthical in note 28 reporting that the alteration to the embedded quote appearing in Chaney originated with the Office of Legal Counsel opinion.)

Courts Quoting Themselves Quoting Themselves

Some courts, including the nation’s highest, remove internal quotation marks under circumstances in which the new Rule 5.2 (and the prior Blue Tip) would require their retention. For example, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Justice Blackmun’s dissent cites a prior decision of the Court as follows:.

Cf. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (“Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury”) (internal quotation marks omitted).

Id. at 592.

A portion, but only a portion, of the parenthetical quote (“whether there is a real and immediate threat of repeated injury”) was drawn from a still earlier decision of the Court, O’Shea v. Littleton, 414 U. S. 488 (1974). Per The Bluebook, that quote within a quote should have been wrapped in single quotation marks. However, this is judicial writing, not a journal article. Judges may well consider it far less important to separate out exactly which language quoted from a past opinion of their own court was in turn recycled from a prior one. They are likely, however, The Bluebook notwithstanding, to continue to feel an obligation to note the occurrence of such reuse with an “internal quotation marks omitted” parenthetical.

Courts Quoting Themselves Quoting Other Sources

The situation is markedly different when one judicial opinion quotes a prior one that rests on constitutional or statutory language. Being absolutely clear about that dependency argues for retaining the interior quotation marks, even when The Bluebook would trim them. Justice Thomas, dissenting in a 2015 case, Elonis v. U.S., 135 S. Ct. 2001 (2015), wrote:

For instance, in Posters `N’ Things, Ltd. v. United States, 511 U.S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to “‘make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,'” id., at 516 (quoting 21 U.S.C. § 857(a)(1) (1988 ed.)).

Since Thomas’s quotation from Posters ‘N’ Things consists entirely of language drawn from the U.S. Code, The Bluebook would omit the single quotation marks and rely on the “quoting” parenthetical to inform the reader of the ultimate source.

What Should Lawyers Do in Brief or Memorandum?

Negligible space is saved by trimming single quotation marks. Indeed, space is sacrificed and the word count increased if that trimming compels the author to add a four word parenthetical phrase. That suggests, at minimum, lawyers not be influenced by the judicial practice of occasionally removing internal quotation marks from quotes that rest within longer ones, no matter the ultimate source. Absolute clarity argues for including them even when The Bluebook considers them unnecessary. In no case should there be need for an “internal quotation marks omitted” parenthetical.

Make that “Advert.” not “Adver.”

October 6th, 2015

For nineteen years The Bluebook has decreed that when the word “Advertising” appears in a case name it should be abbreviated as “Adver.”  The pairing of word and abbreviation first appeared in the sixteenth edition.  The codification at once captured the then prevailing professional practice and encouraged use of that abbreviation over the two common alternatives.  Those were: 1) to include the word in full or 2) to abbreviate it to coincide with the British informal term, rendering it “Advert.”

Inexplicably, the latest edition of The Bluebook has added a terminal “t”, embracing an approach it rejected in 1996. Henceforward, all who follow its mandate must cite:

  • City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991)
    • as
  • City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365 (1991)

Why make the change?  Successive editions of The Bluebook have regularly added new “mandatory” abbreviations. The T6 list of the sixteenth edition had 120 entries. In the nineteenth there were 144, including an entry for “County” (to be abbreviated “Cnty.”). This latest edition is the first, in my memory, to substitute new abbreviations for established ones. In addition to supplanting “Adver.” with “Advert.” it has replaced “Cnty.” with “Cty.” Neither change addresses a source of potential confusion. Neither is driven by professional citation practice.

A failure to proofread? Implausible. The most likely explanation lies in the increasingly proprietary claims of The Bluebook enterprise. Faced with a better teaching book, the ALWD Guide to Legal Citation, and with data sources and software packages that purport to deliver citations that conform to its rules its editors made a number of arbitrary changes. “Copy if you dare,” they seem to be saying. For those operating within the universe of law journal publication such arbitrary changes may be hard to resist. With lawyers and judges, they’ll largely be ignored.

 

2015 version of Introduction to Basic Legal Citation released

October 1st, 2015

The latest edition of Introduction to Basic Legal Citation is now online at: http://www.law.cornell.edu/citation/  with conformed ebook versions at: http://access-to-law.com/citation/. For those wanting the convenience of a direct download to a Kindle or Kindle app, the updated work is also available through the Kindle store. Only the latter carries a charge – $.99, the minimum Amazon will allow.

This year’s revisions include description of a number of changes in The Bluebook‘s approach to core citation issues reflected in its 2015 edition, flagging those that lack any basis in the writing of lawyers and judges. As is true every year, the tables and pages identifying and illustrating jurisdiction-specific citation norms for cases, statutes, and regulations have been carefully audited and, where necessary, updated.

Aimed at those who write as practicing legal professionals or are learning to do so, this resource leaves coverage of the distinctive format requirements and myriad potential sources cited in academic writing to The Bluebook (BB) and ALWD Guide to Legal Citation.  It contains detailed information on how judges and lawyers cite core legal materials in each of the fifty states and the District of Columbia, furnishing examples, but none on how to cite statutes and regulations of the Czech Republic (BB at 353) or decisions of France’s Conseil d’État (BB 359).

As was true in years past, the revision process unearthed a number of policy issues that deserve discussion here. Some of them (such as how to cite Restatements) have already been addressed.

Bluebook (20th ed.) and Restatements, Model Codes, etc.

September 8th, 2015

Prior to publication of the new Bluebook, law journals, lawyers, and judges were in pretty close agreement on how to cite a Restatement section (e.g.Restatement (Second) of Torts § 46 cmt. j (1965) [as cited in the May 2015 issue of the Harvard Law Review] or Restatement (Second) of Contracts § 349, cmt. a (1981) [as cited in an Aug. 2015 decision of the Seventh Circuit]).  Journals put the titles in large and small caps.  Lawyers and judges didn’t.  Furthermore, consistent with their treatment of other static material, many lawyers and judges left off the date element.  In an era in which briefs are held to a maximum word count, why include the redundant “(1965)” or “(1981)”?  The Bluebook reflected that consensus.  Its prescribed formats for citations to provisions in Uniform Codes, Model Acts, the federal sentencing guidelines, and the ABA Model Rules of Professional Conduct were consistent with it.  See The Bluebook R. 12.9.5 (19th ed. 2010).

Without warning the 20th edition of The Bluebook changed that. Revised rule 12.9.4 would add a new component to all such citations – namely, the institutional source of the work.  The new rule requires that the date parenthetical include the source’s name, abbreviated.  That means adding “Am. Law Inst.” (3 words) to Restatement citations, “Unif. Law Comm’n” (3 words) to most Uniform Code citations but “Am. Law Inst. & Unif. Law Comm’n”  (7 words) in the case of the U.C.C., and “Am. Bar Ass’n” (3 words) to Model Rules citations.   To what end?  Does the additional element aid “the reader to efficiently locate the cited source”? The preface to the new edition simply notes the revision and makes vague reference to “citation principles”.  It furnishes no rationale.

The preface does, however, credit two individuals for “valuable advice and assistance in revising this rule”.  Their identities furnish a clue.  One is Richard Revesz, identified by The Bluebook as dean, as he was at N.Y.U. Law School from 2002-2013.  However, since 2014 Revesz has been Director of the American Law Institute or ALI.  The other individual, Professor Robert Sitkoff of the Harvard Law School faculty, is a member of the ALI Council (its governing board) and a Uniform Laws Commissioner.  I have little doubt that the two of them pressed for the attachment of the America Law Institute’s name to all Restatement citations, with equal treatment for entities issuing uniform laws, model rules, etc.  In a  process as opaque as that leading up to revision of The Bluebook and with law students as the ultimate arbiters, it is not surprising that Revesz and Sitkoff prevailed.  Had the proposed change been floated for public comment, it probably would not have survived.

Will the change stick?  Most if not all law journals will blindly implement the revision.  With its commitment to follow The Bluebook in lockstep the ALWD Guide to Legal Citation seems certain to as well.  Will lawyers and judges comply?  Even in those jurisdictions that purport to require that citations in briefs conform to The Bluebook, I have my doubts.  The revision has created a very interesting test of The Bluebook‘s influence on citation practice within the legal profession.

The Bluebook’s Inconsistency about When to Identify an Electronic Source

August 28th, 2015

The Issue

Most legal research in the U.S. is conducted using electronic source material, and for many types of cited works, primary and secondary, there are at least several possible sources.  A pervasive issue is whether a citation ought specify the source relied upon by the author or whether instead a generic citation, adequate to retrieve the cited work from all widely used sources, will suffice.  The latest edition of The Bluebook delivers inconsistent and, at times,  confusing guidance on the point.

Cases

Consider a brief that cites a slew of cases, state and federal.  If the author has retrieved them all from an online source (Westlaw, Fastcase, Google Scholar, an official court Web site) should her citations note that source?  A fair reading of The Bluebook (20th ed.) yields the conclusion that they need not.  Rule 10.8.1 authorizes, but does not require, citation to a specific database when “a case is unreported but available in a widely used electronic database.”  There is no suggestion that a citation to a “reported” decision (i.e. reported in print), such as State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015),  need state that the author relied upon Google Scholar or Fastcase or acknowledge that despite the use of volume and page numbers, she did not review the text in the print reporter to which they correspond. Similarly, a citation to State v. Ortega, 2014-NMSC-017, ¶ 55 is apparently complete without a notation clarifying whether the writer relied upon the official digital version available from the New Mexico Compilation Commission site or the altered version offered by Westlaw.  On this point The Bluebook‘s silence is in full accord with the citation practice of lawyers and judges.  The twentieth edition, like the nineteenth, appears to accept generic case citations.

Statutes, Constitutions, and Court Rules

What The Bluebook Says

Generic citations to a constitution or statutory provision are a different matter.  Rule 12.5(a) insists that when the writer’s source for a statutory code citation is an electronic database, the citation should include the name of the database, the publisher (unless a public office), and its currency.  Rule 11 lays down the same requirement for citations to constitutions even though it doesn’t call for identification of source if it is printed. (Presumably, one can be working from the U.S. Constitution as printed in The World Almanac and Book of Facts without confessing it.)  In contrast, rule 12.9.3 fully embraces citations to rules of evidence and procedure that leave off source, whether print or electronic.  Consistency in approach is lacking; no clear rationale for the different requirements is evident.

What Judges and Lawyers Do

When contemporary decisions of the U.S. Supreme Court or U.S. Court of Appeals cite provisions of the U.S. Copyright Act they refer to them by U.S. Code title and section number – no date (current provision being implied), no indication of source.  The odds are very high that the source relied upon by the judges or their clerks was Westlaw.  That being the case The Bluebook (rule 12.5) would call for a citation along these lines:

  • 17 U.S.C.A. § 301(a) (Westlaw through Pub. L. No. 114-49).

Instead the opinion will almost certainly cite the provision generically:

  • 17 U.S.C. § 301(a).

As will briefs submitted in the case.

Commentary

The Bluebook‘s strong stance on the primacy of print when citing treatises was the subject of a prior post.  Its position on law journal articles appears, at first, to be stated in similarly unequivocal terms.  Rule 16.8 requires that when “citing periodical materials to a database” one include “a citation to the database”.  But rule 18.2.1 (added with the nineteenth edition in 2010) provides that when an exact copy of a print source is available online it can be cited “as if to the original print source.”  That, of course, is standard professional practice with law journal citations.  Surely, such citations needn’t indicate whether the author retrieved the article in question from Lexis, Westlaw, HeinOnline or the journal’s own online archive.

The Rule that Should Swallow its Exceptions

The relationship between rule 18.2.1 and The Bluebook‘s various mandates to identify one’s actual source is unclear.  In all likelihood this is a case where the specific (the mandate concerning statutes, for example) is intended to prevail over the more general rule.  Both reflect the continuing grip of a print mindset, quite at odds with the world in which today’s lawyers and judges work.  Rule 18.2.1. itself carries a heading that refers to “the original print source.”  In truth the original source of nearly all print documents of the current era is electronic.  Rule 18.2.1(a)(iii) and rule 18.2.2(f) express an attachment to electronic material that is held in pdf format because it “preserves the pagination and other attributes of the printed work.”  Yet the information sources most heavily used by the legal professions, Westlaw, Lexis, Bloomberg Law, and the rest, scroll and hyperlink rather than page.  What is critical is that the source be reliably accurate and that it contain the accepted units of citation for the cited work, whether page, section, or paragraph numbers, and not that it look and behave like print.  Need it be an “exact copy” as rule 18.2.1 would seem to require?  On its face that would rule out all the online services that enhance decisions and statutes with parallel citations and other editorial tampering.  The Bluebook‘s level of unreality on these points can only be excused on the ground that it is prepared by students at four elite law schools and aimed primarily at the legal education market (list price $38.50).  Ironically, the proprietors now offer “the full content of The Bluebook” online (on a subscription basis – $36 for one year, $46 for two) and as an Apple ios app ($39.99).  Presumably, they intend these different formats to be viewed as interchangeable.  Believing it safe to rely on the authors for consistency, I don’t feel obliged to report which I relied upon in preparing this post.

How to Cite Treatises

August 24th, 2015

Introduction

The twentieth edition of The Bluebook is out in time for sale to a fresh crop of 1Ls.  This is the first of a series of posts that will explore how well that venerable guide addresses the conceptual and practical issues faced by lawyers, judges, and law students whose legal research and writing take place in a predominantly electronic environment.  Like the citation reference to which this blog is related, the focus here will be on writing and citing in professional practice and not the norms that prevail in academic journal publication.

Where Have All the Treatises Gone?

Once upon a time legal treatises were produced in print (and only in print) by a wide array of publishers.  West Publishing was one of them, but many treatises had no tie to a vendor of primary materials.  Citation practice made that possible.  The purchaser of a treatise published by West Publishing Company could use it with statutes published by the Michie Co. or law reports published by Lawyers Cooperative Publishing.  The same “interoperability” enabled such companies as Little, Brown & Company, Warren, Gorham & Lamont, and Matthew Bender & Co. to publish highly successful treatises without having any involvement in the publication of primary authority.  Law libraries could and did mix and match.

During the final decades of the twentieth century, through a series of acquisitions, Thomson Reuters, Reed Elsevier, and Wolters Kluwer gathered the works owned by those publishers into large treatise portfolios and placed them online.  While most treatises can still be purchased and sustained through updates in print form, contemporary researchers are far more likely to encounter the likes of Nimmer on Copyright or American Law of Zoning in electronic format.  In 2015 electronic format most likely means via the publisher’s online service, but not necessarily.  Treatises in ebook form have begun to appear.

The Resulting Citation Challenges

When a researcher identifies a treatise passage she wishes to cite (in memorandum, brief, or opinion), should her citation indicate in which of that treatise’s multiple versions (print, online database, or ebook) she has found it?

Here are two examples, one each drawn from the Westlaw and Lexis treatise collections.

1) From a Thomson Reuters treatise

A search on WestlawNext for the zoning treatment of “adult” businesses might well lead to the following passage, copied directly from that service together with what it terms “standard” citation:

§ 29:7. Place regulation: defining and zoning adult businesses

In the wake of Renton, regulations governing the places where adult businesses may operate have been widely adopted by governments at both the state and local levels. These regulations, which apply to a range of adult establishments, must comply with various limitations to ensure that they are constitutional “place” regulations for protected speech.

3 Am. Law. Zoning § 29:7 (5th ed.)

According to Rule 15 of The Bluebook, three items are missing from this “standard” citation provided by Westlaw: the name of the author (currently, Patricia E. Salkin), the full title (American Law of Zoning) and the date.

I see from the publisher’s web site that updates to the print version were shipped in May 2015.  The immediately previous update occurred in late 2014.  Since the Cornell library does not have the fifth edition of this work, let alone its updates, in either print or in ebook form I must rely on the online version.  It  reports “Database updated May 2015”.  If I were to cite the passage as if working from print, I would add the author whose name is provided online above the section text, expand the abbreviated title to full, and add a date, producing the following:

3 Patricia E. Salkin, American Law of Zoning § 29:7 (5th ed. 2014).

Because the print work is in looseleaf form and the updates come in the form of substitute pages, and I can see from the publisher’s site that the May update did not include new material for § 29:7 it’s not clear that I shouldn’t instead use the year of the 5th edition’s publication or that section’s most recent revision.  The online version does not furnish that information so I’ll have to stick with “2015”.  Or should it be “May 2015”?

Back to The Bluebook, despite contemporary reality it seems to assume that I’ll be working from print.  I’ll not count the ways, but note that rules 15.1 and 15.3 refer to “the title page” and 15.9(c) speaks of the print version as being “authoritative”.  Rule 15.9 warns against treating the online version of a book as interchangeable with the print.  Rule 15(c) limits citation of an ebook version to works that are only available in that form.

Well, the practical difficulty for this writer and most others is that although this treatise is available to the world in three formats, I have feasible access to but one.  Consequently, I can only cite to the Westlaw version.  Rule 15.9 suggests that in that case I should recast my citation along these lines:

3 Patricia E. Salkin, American Law of Zoning § 29:7 (5th ed.), Westlaw (database updated May 2015).

If I, instead, had only the ebook version to work from, Rule 15.9(c) instructs that I report that by means of an “ebook” parenthetical.

2) From a title owned by Reed Elsevier

A LexisAdvance search on the same zoning topic leads to a paragraph that Lexis suggests should be cited as:

2-11 Zoning and Land Use Controls § 11.03

The proposed citation contains no author, edition, or date.

Using the online table of contents to climb back to the top matter of the work, I find both “Author(s)” and “Cite As” pages.  The latter proposes that I cite this material in the following format:

Zoning and Land Use Controls, Ch. no., Title, § (LexisNexis Matthew Bender).

The former lists two authors: Patrick J. Rohan and Eric Damian Kelly.

The text I would cite shows a 2015 copyright notice and indicates by footnote that its text was the subject of a major revision by “General Editor, Eric Damian Kelly” in 2003.

I know that Dean Rohan died in 2009.  A search for Eric Damian Kelly leads me to Ball State University, where he is listed on the urban planning faculty.  Kelly’s CV describes his role with Zoning and Land Use Controls as “General Editor”.  It’s not clear exactly what that means; perhaps that the treatise is being maintained by Matthew Bender editorial staff under Professor Kelly’s general supervision.

It is from such data scraps that one must construct a citation.  As with American Law of Zoning I have no access to either the print or ebook version of this treatise, no idea what they display on their respective title pages.

Doing my best to apply The Bluebook‘s practitioner rules to this treatise section I would cite it:

2 Zoning and Land Use Controls § 11.03 (Eric Damian Kelly ed., 2015).

However, I confess to uncertainty whether this is the sort of editor role to which Rule 15.2 is addressed.  And there is, again, the question of whether the database, “Lexis” in this instance, shouldn’t be noted.

How Real Lawyers and Judges Do It

Examination of a sizable sample of recent judges’ opinions and lawyers’ briefs that cite treatises yields these conclusions:

  • No matter what The Bluebook says, print and electronic versions are treated as interchangeable.
    • Citations of treatise sections that are almost certainly based on the online version invariably fail to say so.  And there is, as yet, no trace of an acknowledged ebook citation.
  • The year of most recent revision is generally, although not consistently, provided.
    • Since briefs and opinions are focused on a specific matter and dated, a treatise citation can arguably drop the year of publication or most recent revision so long as it is referring to the most recent version of the text as of the date of writing.  That is presumably the logic of citations like: 1 Melville B.  Nimmer & David Nimmer, Nimmer on Copyright § 6.03.
  • Whether or not the date is given, the edition is usually indicated (e.g., “4th ed.” or “rev. ed.”).
  • Whether and, if so how, to credit subsequent authors or editors of treatises that still carry the name of a deceased author is a matter on which practice varies widely.  In truth, so long as the title adequately identifies the work – Zoning and Land Use Controls, Powell on Real Property – it is hard to understand why the current editor need be named.
  • The citation format furnished by publisher or online service for a treatise often prevails over The Bluebook when the two conflict.

 

Oklahoma’s Court Network Threatened by Legislative Proposal

May 29th, 2015

In 2014 this blog reported on the decision by Oklahoma’s Supreme Court that the electronic versions of state appellate decisions published on the Oklahoma Supreme Court Network (OSCN) would replace those printed in the National Reporter System as “official”.  A budget crisis brought on by declining oil revenues now places that critical publication channel in jeopardy.  A proposal before the legislature would divert nearly all the dedicated fees on which OSCN depends to other uses.

New Mexico’s Mandate That Medium-Neutral Citations Be Used for Cases Originally Issued without Them

May 20th, 2015

New Mexico’s Unique Citation Rule

Since August 1, 2013 briefs, memoranda, and other papers filed with New Mexico’s courts have been required to use a system of medium-neutral case citation for all New Mexico appellate decisions. That citation system, similar although not identical to the model recommended by the American Bar Association and American Association of Law Libraries, was first implemented by the New Mexico Supreme Court in 1996. Pierce v. State, released for publication on January 4th of that year, was designated “1996-NMSC-001”. The first decision of the state’s court of appeals in 1996, State v. Gutierrez, carried the citation “1996-NMCA-001”. Both were issued with numbered paragraphs. Simultaneously issued citation rules required filings in New Mexico courts to cite those decisions and subsequent ones using their medium-neutral citations.

What is unprecedented about the 2013 amendment to those rules is that it requires that New Mexico’s print-independent citation system be used for all pre-1996 decisions reaching back to 1852. No other state has taken this step. Shortly after Oklahoma implemented medium-neutral citation in 1997, it retrofitted all prior reported decisions. But that state’s citation rule, then and now, simply provides that parallel citations employing the print-independent scheme are “strongly encouraged for opinions promulgated prior to May 1, 1997“.

Some Background

The New Mexico Compilation Commission began as an agency responsible for producing a full compilation of the state’s statutes, hence its name. In 1982, however, the commission was  given additional responsibility — publication of the New Mexico Reports. In 2004 it was declared to be the state’s official legal publisher. In 2011 the commission ended print publication of the New Mexico Reports, and the state’s supreme court designated the authenticated electronic files of decisions at the Compilation Commission web site their final, official version.  And in 2012 the Commission’s database of electronic decision files, each with a medium-neutral designation  (e.g., “1982-NMCA-051”) and paragraph numbering, was extended all the way back to Bray v. United States, 1852-NMSC-001.

Today, the Compilation Commission offers legal professionals and state offices the compiled statutes of New Mexico in both print and electronic format.  Combined with the state’s case law, court rules, decisions of the regional federal courts, and other material, the commission’s integrated DVD and online database serve state and local government offices and compete with the commercial research services in the legal information market.  Because of an attractive subscription price (roughly $60 a month for the general public, less for state and local government agencies), official status, and a growing list of features (most recently a limited citator service for its case reports) these services, known as NMONESOURCE, do, in fact, offer serious competition.

The principal drawback of the Compilation Commission’s database for legal professionals is its tight focus on New Mexico.  With some frequency the state’s judges and lawyers need access to federal case law, statutes, and regulations.  On occasion, they must consult decisions from other states.  Although the Compilation Commission’s electronic library includes a collection of the most useful federal decisions and serves as a portal, linking to Google Scholar for the case law of other states and U.S. government sites for the Federal Register and Code of Federal Regulations, it falls short of providing a full range of non-New Mexico primary legal material.  At a minimum the users of NMONESOURCE must, from time to time, turn to some other research service.   Convenience may lead them to stay or even start out elsewhere.  The default “other service” for New Mexico’s lawyers is Fastcase, available as a membership service to all members of the bar.   For the state’s judges it is Westlaw, to which all of them, from the district courts  through the state supreme court, have access under a group Westlaw subscription.

Consequences to Date

Compliance by Judges, Lawyers, and Law Students

Current decisions of the appellate courts of New Mexico model the citation format the 2013 rule requires of lawyers.  While that rule does not require parallel print-based citations for state decisions dated after the cutoff for the final volume of the New Mexico Reports, judges continue to include parallel references to the Pacific Reporter of the Thomson Reuters National Reporter System.   As the rule directs, however, their pinpoint references employ the paragraph numbers of the medium-neutral format.  Review of a small sample of briefs filed in recent New Mexico appeals leaves little doubt that the system has also taken hold among lawyers.  Student editors of the New Mexico Law Review employ the new citation method in their writing.

Take Up by Major Law Databases

To comply with the 2013 citation rule, the judge, lawyer, or law student needs access to a database that has retrofitted its collection of New Mexico’s pre-1996 decisions with medium-neutral case identifiers and paragraph numbers.  A database search on “contract breach” may lead a researcher to the 1959 decision of the New Mexico Supreme Court in Wolf v. Perry or the 1993 case, Mark V, Inc. v. Mellekas.  When first published and for years thereafter the volume and page numbers of those two decisions in the New Mexico Reports and Pacific Reporter would have provided proper citations.  Indeed, they had none other.  But as of August 1, 2013, Wolf v. Perry is to be cited as “1959-NMSC-044”; Mark V, Inc., as “1993-NMSC-001”.  While a search on Bloomberg Law, Google Scholar, or Fastcase will take you to those cases, none of those services yet delivers their neutral citations, let alone the paragraph numbering needed to direct a reader to a specific passage.

Does this place the subscription service offered by the New Mexico Compilation Commission in a unique competitive position?  No.  The same search conducted on LexisNexis or Westlaw reveals that those services have followed the commission’s lead and added neutral cites and paragraph numbers to all pre-1996 New Mexico cases.  Other research services serious about the New Mexico market will, no doubt, do the same.  No license from the state is required.  Despite the copyright notices that appear throughout the Compilation Commission site, New Mexico could not and does not claim copyright in either the case citations or paragraph numbers.

In the meantime, researchers who wish to cite pre-1996 cases identified through use of a database that has not inserted the new citation parameters can obtain them, case-by-case, from open access resources offered by the Compilation Commission.  The commission’s web site holds tables that allow one to convert any pre-2013 official cite (“65 N.M. 457” or “114 N.M. 778”, say) to the new system (“1959-NMSC-004” and “1993-NMSC-001”, respectively).  The site also provides, as a free public resource, a comprehensive case law collection reformatted in accordance with the new standard.  From it one can draw the paragraph numbers the new rule calls for in pinpoint cites.  Furthermore, because the commission’s site is open to external search engines it is possible to bypass the lookup tables and go straight to the decision one wants to cite.  A Google search on “114 N.M. 778” or “845 P.2d 1232” limited to the commission’s site will lead directly to the medium-neutral version of Mark V, Inc. v. Mellekas as well as recent cases citing that decision.  In fact, because the site is open to external search engines the initial case research need not begin elsewhere.

Lack of Reinforcement in NMSA and Most Other Annotations

As the state’s official publisher the New Mexico Compilation Commission also publishes the New Mexico Statutes Annotated and the New Mexico Rules Annotated.  Both are included in electronic form as components of its online and disc products.  They are also sold in print.  In neither have annotations to pre-1996 decisions yet been conformed to the new rule.  An annotation’s reference to a 1994 case will still cite it as  “In re Cutter, 118 N.M. 152, 879 P.2d 784 (1994)” rather than “In re Cutter, 1994-NMSC-086, 118 N.M. 152″.  So long as a researcher is working from the DVD or online version the annotation’s obsolete format is not a problem for the cites are linked to copies of the opinions, which carry the now official neutral citations and paragraph numbers.  On the other hand, since programmatic conversion of the old-form citations should be fairly straightforward there is reason to expect that it will occur before long.

The annotations that appear in Michie’s Annotated Statutes of New Mexico, as published online by LexisNexis, do contain cites that conform to the new rule.  Those in West’s New Mexico Statutes Annotated and in the Fastcase annotations to the New Mexico Statutes, as yet, do not.

Effects Limited to New Mexico

Many decisions of the U.S. District Court for New Mexico do employ the state’s medium-neutral citation scheme when citing its courts’ post-1996 decisions.  Not all do, however, and there is little evidence to date that federal judges will be induced to cite older New Mexico decisions in accordance with the 2013 rule.  When decisions from New Mexico, contemporary or older, are cited in other states, even states with their own systems of neutral citation, they are, almost invariably, cited by volume and page number.

A Model for Other States?

Oklahoma is the only other state to apply a non-proprietary medium-neutral citation scheme retrospectively to its full body of case law.  There, nearly two decades of “strong encouragement” to use the system in citing older decisions has had a pervasive effect on in-state citation practice.  In Oklahoma, like New Mexico, the policy was undergirded by creation of a comprehensive database of state law open to judges, other public officials, lawyers, and members of the general public — an initiative explicitly aimed at loosening dependence on commercial systems.

The barriers inhibiting prospective adoption of any new citation approach are sufficiently daunting and the costs of creating the necessary supporting database large enough that all other states adopting medium-neutral schemes have been content to leave their print-era case law wrapped in print-era citations.  Two of them, Arkansas and North Dakota, have done so despite having created public databases of earlier appellate decisions.  So long as the boundary between old and new is distinct this seems a totally defensible approach.  How a Illinois judge or lawyer should cite decisions of that state’s courts rests very clearly on when the decisions were filed.  Those released prior to July 1, 2011 and published in the Illinois Official Reports must be cited by volume and page number.  Decisions filed on or after July 1, 2011 with a “public-domain citation” must be cited using it.

What reasons might have led New Mexico to take a more radical approach to citation reform?  The first is that it could.  Without a full retrospective case law collection the publications and legal research services of the New Mexico Compilation Commission were seriously incomplete, including importantly its flagship New Mexico Statutes Annotated.  Assuming that construction of such a comprehensive digital archive had to be undertaken, the attachment of non-print-based citations in the same format as those that judges and lawyers had used for post-1996 cases may have seemed a modest add-on.  Moreover, the rule change could be seen as placing NMONESOURCE, the Compilation Commission’s subscription service, in a uniquely authoritative position.  Set up as an “enterprise unit” funded out of sales and subscription revenue along with a dedicated portion of court filing fees, the commission was in need of a resource boost.  As the annual report of the New Mexico judiciary for fiscal year 2013 noted:

The challenges facing the [commission] are the increases in publishing costs while revenue declined for the second year in a row. There is a significant loss in civil action filing fees due to the decrease in civil actions filed. There is strained subscription revenue stemming from the economy overall and the increase in self-represented litigants who elect to file civil actions and appear in court without legal counsel. Lawyers are forced to make difficult decisions to postpone subscribing to the official laws in favor of the limited, unannotated laws on the public access site.

However, since that same public access site provides a complete set of New Mexico decisions as well as look-up tables matching volume and page number cites with their medium-neutral equivalents and the leading commercial database services have rapidly incorporated the new cites, the 2013 rule change may not, in the end, have a significant effect on NMONESOURCE subscription revenue.

No other U.S. jurisdiction has an agency with the broad charge and challenging duties of New Mexico’s Compilation Commission or today has the initiative, incentive, or resources within the judiciary to create a database like the one Oklahoma established years ago.  For that reason it seems unlikely that the path New Mexico and Oklahoma have blazed will be followed by others anytime soon.

 

Judges Are Not Like Pigs

May 20th, 2015

A recent decision of the West Virginia Supreme Court of Appeals quotes a local aphorism that underscores the importance of specificity when citing either to the record or legal authority.  It is to the effect that: “Judges are not like pigs, hunting for truffles buried in briefs.”