How Google Scholar Undercuts Jurisdictions Going Digital While It Could as Easily Support them

January 26th, 2015

Google Scholar’s case law collection has been an enormous boon to this country’s lawyers and all others puzzling over U.S. law.  Not only does it provide free and direct access to a professional quality case database, but it enables legal commentary linked to governing precedent to reside outside a pay wall.  Ironically, this breakthrough electronic research tool remains largely reliant on print source material.  That is for many jurisdictions a direct consequence of the courts themselves being stuck in obsolete publication practices.  But Scholar’s reliance on print holds even for states in which there is a more authoritative digital alternative.  In the case of several state courts that have recently shifted to official online publication, Scholar persists in loading digitized versions of their decisions drawn from the pages of the Thomson Reuters National Reporter System (NRS).  For at least one – Illinois – this is done without preserving the official citation information required in all submissions to that state’s courts.

Exhibit No. 1: Google Scholar’s Treatment of Illinois Decisions

In July 2011, less than two years after Google Scholar unveiled its case law database, Illinois began publishing the official versions of its appellate decisions online.  Print publication of the Illinois Official Reports ceased.  As a consequence the final and official version of the Illinois Supreme Court in Lake County Grading Co. v. Village of Antioch, 2014 IL 115805 (and all other binding decisions rendered by Illinois appellate courts since the switch) is available for anyone, including Google, to download from a public site.  The text’s official status is indicated, and all that one needs to cite that decision to an Illinois court, in whole or in part, is contained in the electronic document.  One could hope, one might expect, that Google Scholar would embrace and leverage this judicial reform.  The change was, after all, prompted by many of the same goals that lie behind the Google initiative.  Yet Scholar continues to digitize the print NRS version of this and other post-2011 Illinois decisions.  Worse, while doing so it drops the medium neutral citations by which Illinois courts identify those decisions and require those invoking them to employ (“2014 IL 115805” in the case of Lake County Grading).  Google’s practice appears to be to harvest Illinois decisions when first released in slip opinion form, to ignore the subsequent “official” electronic version, and ultimately to replace the slip opinion with a digitized copy of the NRS text.  This final case report displays the volume number and page at which the decision is located within the NRS North Eastern Reporter as well as its internal pagination and paragraph numbers.  But critically it omits the official medium-neutral case cite.  For an example take a look at People v. Colyar, 2013 IL 111835.  It can’t be said that Scholar completely ignores the new non-print Illinois citations, for it uses them to index decisions.  As a result Colyar’s citation (“2013 IL 111835”) entered as a search will retrieve the case.  The official cite also appears in Colyar’s listing when the decision is retrieved by a typical word search.  The problem is that it remains absent from the opinion text when displayed on the screen, downloaded, or printed out.

Exhibit No. 2: New Mexico

New Mexico furnishes a second example of Google’s unfortunate print bias.  Like Illinois, New Mexico ceased publishing official print reports in 2011.  Since then the official version of any precedential New Mexico decision is contained in an electronic file retrievable without charge from the New Mexico Compilation Commission siteZhao v. Montoya, 2014-NMSC-025 is one such case.  Ignoring the change, Google Scholar has continued to draw its final text of the state’s appellate decisions from the NRS Pacific Reporter.  However, probably because New Mexico began attaching neutral citations to decisions long before the Scholar case database was conceived or designed, Google’s print-based acquisition process has, from the start, extracted those official citations from the NRS reports and included them within each case.  On the other hand, since Google Scholar relies on the Pacific Reporter for that information, decisions appear without their official citation until they have been published by Thomson Reuters and digitized by Google from that print source.  Compare the official version of Wilkeson v. State Farm Mut. Auto. Ins. Co., 2014-NMCA-077, with that provided by Google Scholar.

Exhibit No. 3: Oklahoma

Scholar’s treatment of Oklahoma decisions demonstrates that this need not be so.  The Oklahoma judiciary declared its online publication of appellate decisions official as of the beginning of 2014.  As with the others this reform did not alter Google Scholar’s reliance on the NRS as the ultimate source of Oklahoma’s case law.  Scholar continues to download Oklahoma decisions from the public site at the time of initial release, ignore the subsequent electronic versions designated as “official”, and replace the original files with digital copies of the texts once they appear in the Pacific Reporter.  There is one important difference.  Each decision’s medium neutral citation (e.g., “2013 OK CIV APP 105”) is displayed at the top from the beginning.

Exhibit No. 4: Arkansas

Official Arkansas case reports have been electronic since 2009.  That same year the Arkansas Supreme Court erased the distinction between published and unpublished decisions.  All decisions of the Arkansas Supreme Court and Court of Appeals now carry precedential weight.  Faced with the resulting surge in the volume of citable Arkansas decisions, Thomson Reuters, refused to publish them all.  Without guidance from the Arkansas courts, the company’s editors now select only a small percentage for print publication (less than 17% of the 2013 Court of Appeals decisions).  Those that appear in S.W.3d are digitized by Google Scholar (complete with internal pagination) from that source and substituted for the prior court-distributed version.  While Google’s digitization process retains the public domain case designations applied by the deciding court (e.g., “2013 Ark. App. 738”) it strips out another crucial citation element.  Although the NRS version displays the page breaks that appear in the official electronic case report, Scholar leaves them out.  For that reason its versions of Arkansas decisions, both those drawn from the official site and those based on the regional reporter, cannot be used to prepare pinpoint citations in the format called for by that state’s appellate rules.

Exhibit No. 5: Ohio

When the Ohio Supreme Court implemented a non-print citation system in 2002 it too removed the prior distinction between “published and unpublished” decisions.  Ten years later it abandoned print publication of all decisions from the Ohio Court of Appeals.  Since July 1, 2012 the official version of any decision of that court has been the authenticated electronic copy released by the Reporter of Decisions.  During 2013 the court’s twelve districts issued over 5,200 such precedential opinions.  Only 360 or so were selected by the NRS editors for publication in the North Eastern Reporter.  As with Arkansas, Google Scholar loads the entire set of Court of Appeals decisions, later adding  volume and page number cites to the indexing data for those decisions that appear in the regional reporter.  It does not, however, display the NRS reporter citation as part of the opinion.  As is true of the official cites in Illinois, these appear only as part of the listing of results delivered in response to a search.  Thus while a search on “992 N.E.2d 453” will retrieve State v. Venes, 2013 Ohio 1891 (Ct. App. 8th Dist.), that NRS citation does not appear within the opinion nor does Scholar show the NRS pagination.

Google Scholar’s Treatment of the Official Print Reports of California, Massachusetts, and New York Demonstrates that It Can Do Better

The Ohio example reveals that Google’s reliance on the Thomson Reuters reports does not reflect its approach to all U.S. jurisdictions, cost-effective though that might be.  After all, economy and efficiency might well argue for acquiring all case data from that single source.  Ohio does not stand alone.  In the case of several states that still publish their own law reports in print (or contracting for their publication) Google digitizes those reports rather than their NRS counterparts.

California, Massachusetts, and New York are among those “official report” states.  Importantly, these three employ distinct formats for internal citations.  To illustrate, as published in New York’s official reports, the New York Court of Appeals decision in De La Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530 (2013), cites a prior decision of the court as follows: “Brukhman v Giuliani (94 NY2d 387 [2000])”.  In the Thomson Reuters editions the citation to Brukhman v. Giuliani becomes: “Brukhman v. Giuliani, 94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)”.  As detailed in a prior post, such citation format differences make it easy to detect whether the decision texts for the jurisdiction have been drawn from its official reports or from the proprietary NRS.

Applied to Google Scholar this analysis establishes that it currently draws New York case data from the official reports.  Have a look at its version of De La Cruz.  Although the volume and page numbers at which that decision appears in the North Eastern Reporter and New York Supplement have been added so that users can extract a parallel cite, the format of the citations contained within Scholar’s version of De La Cruz decision, as well as the page breaks shown within the text, reveal the version to be a digital copy of the official report.  Similar citation analysis reveals that Google Scholar also relies on California and Massachusetts official reports for decisions from those states.  In other words, Google’s data acquisition process does not rest exclusively or consistently on the Thomson Reuters reports.

Drawing on the official reports of California, New York, and Massachusetts necessitates digitizing print.  But with states like Illinois and the others that have moved to official electronic distribution this is unnecessary.  Transposed to them, using the official version of decisions would avoid that costly process and require only two or three steps:

  1. Loading opinions as first released, include all citation data embedded in them (case cites, paragraph numbers, or when necessary, as with Arkansas, internal pagination). Google currently accomplishes this with Oklahoma and Ohio, but fails to do so for Arkansas, Illinois, or New Mexico.
  2. Second, if decisions are initially released in a preliminary or slip form, substituting their final, official versions, once available, again, retaining all citation data. Patently, Google follows this pattern in New York, California, and Massachusetts where that final, official version is brought out in print.
  3. Finally, adding a parallel National Reporter System volume and page number cite to the official medium neutral citation once it becomes available. Google’s process for decisions from New Mexico and Oklahoma, not to speak of the print publication states, New York, California, and Massachusetts, demonstrates that its data systems are capable of this step.

One can hope for the day when all U.S. courts publish their official reports electronically, allowing the full range of legal research services to redistribute final, official, citable copies, adding diverse levels and types of editorial enhancement, including their own citation schemes.  Jurisdictions weighing a shift toward that future ought to be encouraged.  More respectful recognition of the measures taken by states that have already gone digital is an essential first step.  Google Scholar, the dominant free source of U.S. case law, ought to lead the way.

Citations Generated by the Major Online Systems

November 14th, 2014

A recent post on the Legal Writing Prof Blog draws attention to Westlaw’s copy-with-reference feature. Its author raises a concern that the option to have citations formatted in the ALWD style still yields citations conformed to that manual’s fourth edition rather than the fifth edition, published earlier this year.  Since ALWD’s new version adheres to The Bluebook’s citation style in nearly all particulars, that problem is easily solved: The Westlaw folks need simply to remove the ALWD option.  However, those engaged in teaching legal writing and introducing law students to citation need to be attentive to numerous other imperfections in this WestlawNext feature and its LexisAdvance analog, as well as in the citations generated by other research services those 1Ls may employ once in practice.

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To begin, although the blogger writes of there being a Bluebook option, that label does not appear among the citation format options of either major service.  The default citation style offered by both Westlaw and Lexis is denominated “Standard”.  Is that due to trademark concerns?  For reasons set out in an earlier post, I doubt it.  The truth is that neither system consistently produces Bluebook compliant citations across the several types of authority and to suggest otherwise would be misleading.  “Standard” doesn’t make such a claim, although it appears it may lead legal writing teachers and their students, not to speak of lawyers and other online researchers, to believe that is the case.

One other point made in that short post arouses concern. Its author observes that because of this new and amazing feature “I can spend a little less time teaching citation format.”  For reasons explained in the latest version of Basic Legal Citation, I view that as a mistake. Let me point out a few reasons why a researcher who wants to employ Bluebook (or ALWD) conforming citations in a brief or memorandum will have to know enough to add, subtract, or modify those delivered by either Westlaw or Lexis.

1. Cases

As pointed out in an earlier post, a major attraction of any copy-with-reference function is that the case name segment of the citations it delivers will have been shrunk through the dropping and abbreviating of certain words.  Per The Bluebook a decision rendered in the matter of

Edward Mann and Holly Mann, Plaintiffs-Appellees, v. LaSalle National Bank, as Trustee under Trust Agreement dated March 22, 1960, and known as Trust No. 24184; Ellenora Kelly; John J. Waters; Irene Breen, as Trustee under Provisions of the Trust Agreement dated January 31, 1973, and known as Trust No. 841; Unknown Beneficiaries of Trust Agreement dated January 31, 1973, and known as Trust No. 841; and Unknown Owners, Defendants-Appellants

is reduced to “Mann v. LaSalle Nat’l Bank”.  Westlaw’s “Standard” format citation for the case is a close though not identical “Mann v. LaSalle Nat. Bank”.  Not The Bluebook’s “Nat’l” nor the “Natl.” favored by earlier editions of the ALWD manual and Bloomberg Law but “Nat.”, the abbreviation long employed by West Publishing Company.

Illinois has its own style manual.  It contains a very short list of names that are to be abbreviated in case names.  “National” is not one of them.  Consequently, citations to Mann by Illinois courts present the case name as “Mann v. LaSalle National Bank”.  One might expect that since Westlaw’s copy-with-reference offers an “Illinois” option choosing it would yield that result.  It doesn’t; the case name for this decision still comes out as “Mann v. LaSalle Nat. Bank”.  LexisAdvance also offers a choice between “Standard” and “Illinois” style citations when copying passages from Mann.  As with Westlaw they render the case name identically.  But in compliance with The Bluebook, Lexis abbreviates “National” as “Nat’l”.

A big deal?  Grounds for choosing Lexis over Westlaw?  Hardly.  I know of no instance of an attorney being chastised by a court for using non-Bluebook abbreviations and have argued that consistent use of those delivered by the writer’s online source ought to be a totally acceptable approach in professional practice.  With their tight attachment to The Bluebook, law journal editors are likely to disagree.

The bigger deal is how Westlaw and Lexis treat the balance of a case citation, particularly if the jurisdiction has, like Illinois, adopted a system of non-print-based citation.  Take the recent case of Brandhorst v. Johnson.  In decisions of Illinois courts and briefs submitted to them a reference to a particular passage of that case in the form ”Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 57” would be complete.  The Bluebook insists that a reference to the National Reporter System (“12 N.E.3d 198, 210” in the case of that passage of Brandhorst) be included in parallel.  When the paragraph in question is copied from WestlawNext with its citation in “Standard” format the paragraph number is not included in the cite.  (LexisAdvance includes it.)  Westlaw does not include the parallel N.E.3d cite in either the “Standard” or “Illinois” style citations for the case. Lexis includes it and adhering to The Bluebook includes a pinpoint page reference.  However, Lexis departs from The Bluebook by throwing in the totally unnecessary “382 Ill. Dec. 198, 206” when the “Standard” format is chosen.  Westlaw’s “Illinois” style citation for the case adds the parenthetical “(Ill. App. Ct. 4th Dist. June 11, 2014)” which none of the style manuals calls for.  The Illinois style guide explicitly states that there is no need for a citation to identify the appellate district “unless that information is of particular relevance to the discussion”.  (Moreover, since the district number is part of the jurisdiction’s public domain citation system, with any recent case like Brandhorst its repetition in a parenthetical wastes space.)  In sum, neither Westlaw nor Lexis delivers a Bluebook cite for this case.  Neither delivers an “Illinois” format citation that conforms to the state’s style guide.  Users who would conform their writing to either of those citation standards need to modify or add to what those online systems serve up programmatically along with a copied passage.

2. Statutes (and regulations)

A provision of the Social Security Act with considerable contemporary relevance is to be found in 42 U.S.C. § 416(h)(1)(A)(ii).  Copy its language with citation from Westlaw and what you get is “42 U.S.C.A. § 416 (West)”.  Lexis renders its citation as “42 USCS § 416”.  Neither service is prepared to yield its branded designation of the U.S. Code to the conventionally used generic or official format.  Neither includes a date or other indication of the currency of the compilation The Bluebook calls for.  And critically, neither provides the absolutely essential subsection and paragraph identifiers that specify the portion of 42 U.S.C. § 416 one is copying.  The blocked text may include “(ii)” but that alone is not enough.  The same failure to reach below the section level holds with citations to regulations.

3. Conclusion

At their current stage of evolution none of the major research services (including not only Westlaw and Lexis, but Bloomberg Law, Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully comply with The Bluebook or, indeed, any of the other citation styles they may list.  In any setting where citation format is critical, users need to know that.  And all researchers need to be aware that the citations of statutes or regulations these systems generate will often be seriously incomplete.

2014 edition of Basic Legal Citation released

October 31st, 2014

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 (for $.99, the minimum Amazon will allow).

Changes in the 5th edition of the ALWD guide, published this past spring, compelled substantial revision.  In addition, this 2014 edition expands the coverage of state rules that deal with both citation and quotation of primary legal materials in court filings.  By specific request, rules specifying the content and organization of a brief’s table of authorities are now included.

Importantly, this latest edition also notes the first traces of citation rules that reflect the desire of courts receiving electronic filings to have their references to the case record structured so that they can be linked directly to the cited portion in their document management system.

As was true last year, the revision process uncovered a number of citation policy issues that warrant discussion here.

 

Citation Alone Doesn’t Make the Argument

June 26th, 2014

Last week the Utah Supreme Court held that the state’s court of appeals had not erred when it refused to consider a laches argument on the ground that it had not been adequately briefed.  Wrote the court:

“We have repeatedly warned that [appellate courts] will not address arguments that are not adequately briefed, and that we are not a depository in which the appealing party may dump the burden of argument and research.” An adequately briefed argument contains “the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on.””Mere bald citation to authority, devoid of any analysis, is not adequate. And we may refuse, sua sponte, to consider inadequately briefed issues.”

Johnson v. Johnson, 2014 UT 21, ¶ 20 (citations omitted).

Neutral Citation – An Important Anniversary

June 24th, 2014

Twenty years ago, the Board of Governors of the Wisconsin Bar, endorsed a report prepared by its Technology Resource Committee. The report recommended that the Wisconsin Supreme Court adopt a new system of “vendor neutral” and “medium neutral” citation for state case law. Its proposal, picked up and refined by the American Association of Law Libraries (AALL) and the American Bar Association (ABA), became the template for a reform movement that continues to spread, albeit too slowly, across the U.S. (For the story in greater detail, see Neutral Citation, Court Web Sites, and Access to Authoritative Case Law.) Today sixteen states employ some form of vendor and medium neutral citation. Most are based on the scheme set out in the 1994 Wisconsin report.

To appreciate how farsighted those who drafted that document were one must reflect back on how courts and lawyers conducted their business in 1994 and how little of what all now take for granted had by then taken shape. Twenty years ago published law reports were used in case law research by most lawyers. Those who employed Westlaw or LEXIS to identify relevant cases had little choice but to turn to print to review those decisions in full because of limitations in those services’ data and interface.

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A contemporary survey of Wisconsin lawyers found that 45% of them relied exclusively on print resources. Judges of the period were at least as print-dependent. No court had yet begun releasing decisions to the Internet. Some, including the Wisconsin appellate courts, were still transmitting their opinions to publishers and online systems in hard copy. The World Wide Web was in its infancy, as was Cornell’s Legal Information Institute site.

3,5'-Diskette

A copy of the Wisconsin report, acquired on diskette as a WordPerfect 5.1 file, hand-coded in HTML 1.0, and divided into segments, to allow for the low bandwidth available to those accessing the Internet via a dial-up connection, was mounted on the Cornell server.  There it can still be found. That historic document has stood up well.  It deserves a read and recognition.  The enormous changes in the methods and media of information dissemination and legal research that have taken place during the intervening decades have only added force to its recommendations.

Using “The Bluebook®©!#%” without a license

June 18th, 2014

In a prior post I reported on the erasure of all prior differences between the citation style set forth in the ALWD Guide to Legal Citation and that prescribed by the work entitled “The Bluebook: A Uniform System of Citation.” Here my focus is on trademark and copyright issues that bear on the competition between these two citation manuals and influence how other works, print and electronic, address issues of legal citation.

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1. “The Bluebook” – A registered mark

Since 2010 the proprietors of the The Bluebook have held a registered trademark in its name. Actually “THE BLUEBOOK”, “THE BLUEBOOK ONLINE”, and “THE BLUEBOOK A UNIFORM SYSTEM OF CITATION” are now all registered “standard character marks.” The cover of that manual’s most recent edition has the “®” symbol immediately following the word “Bluebook”. So does its title page.

There are, of course, myriad books of a similar name reaching back several centuries. There are also numerous registered marks that include “Bluebook” or “Blue Book”.   As applied to a legal citation style guide, however, the phrase is surely indicative of a particular source. And while book titles cannot be registered with the Patent and Trademark Office, works of a series (think “Nancy Drew”, the “For Dummies” books, or closer to home “Williston on Contracts”) are registrable. There seems little doubt that successive editions of The Bluebook qualify. But what does that mean for the publisher of an ALWD guide that wants the relevant market to know that citations prepared in accordance with its instruction will conform in every particular to those prepared following The Bluebook’s rules and appendices.

It is fact that within its 608 pages this new ALWD Guide to Legal Citation makes absolutely no reference to The Bluebook. A cover-to-cover search for that phrase comes up dry. Extreme caution over infringing The Bluebook mark? Unlikely. In all probability this reflects a strategic choice. It may rest on the premise that naming the competition could be taken as a sign of weakness and a conviction that there are other effective ways to draw attention to this new guide’s relative merits. After all, the prior ALWD edition only mentioned that other manual once (to warn users of differences between the two). Outside the pages of this new edition, the publisher can and does draw attention to the removal of all differences between ALWD style and The Bluebook’s, naming the latter.

Comparative advertising that names a trademark-protected competing brand does not infringe the mark so long as it does not “cause confusion as to source” (“Same Sweetener AS EQUAL…. At A Sweeter Price”). See Cumberland Packing Corp. v. Monsanto Co., 32 F. Supp. 2d 561, 580-81 (E.D. N.Y. 1999).

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The largest segment of the market for both works is located in law school student bodies. And within that segment the choice between the two is, in nearly all cases, made by writing faculty or journal editors who, by adopting one or the other, effectively instruct students which to buy. ALWD needn’t put the phrase “The Bluebook” on or in its guide to put its marketing case in front of those intermediaries. Indeed, it is produced under the auspices and direction of the national association of those who teach legal writing.

What about the host of “Bluebook” study aids or software capable of delivering “Bluebook” compatible citations? Can they use its name in communicating what they offer directly to law students, legal academics, and lawyers? Yes, but they need to take greater care to prevent consumers from believing that The Bluebook’s proprietors have reviewed or vetted or authorized their work.

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Hein publishes a small book that used to be called User’s Guide to the Bluebook. The title now has a large “®” appended. The brochure advertising this work is riddled with that symbol and concludes with a footnote reading: “*The Copyright holder’s [sic] of The Bluebook did not contribute to, review, approve, or endorse The User’s Guide to The Bluebook.” Effective, but overkill. Compare the restrained treatment of the trademark status of Microsoft’s spreadsheet software in the guide entitled Excel 2013 for Dummies. On the other hand, Carolina Acadmic Press publishes Understanding and Mastering The Bluebook by Linda J. Barris. Neither its cover nor its front matter acknowledges The Bluebook trademark, identifies the holders, or contains a statement that it has not been reviewed or endorsed by them. That is very likely an oversight.

Over several years Professor Frank Bennett of Nagoya sought to secure assurance that building a software module capable of taking citation elements held in a database and (as one of several options) producing citations consistent with Bluebook style, identifying that style by the name with which we all know it, would not infringe. He was rebuffed. Patience exhausted, Bennett has decided to call the output of his module “the MLZ Bluebook Style” and describe it as “an unauthorized implementation of ‘The Bluebook: A Uniform System of Citation’”. Accurate. Unlikely to produce consumer confusion.

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A final point. Since the target of the federal trademark act is consumer confusion over the source of goods or services sold in commerce, those of us who write about citation norms and style guides need not place an “®” next to “The Bluebook” or otherwise acknowledge the book title’s trademark status whenever we write about it and its contents, any more than an auto reviewer need do so when describing the 2014 Nissan Altima.

2. What about copyright and The Bluebook’s contents?

Like prior editions The Bluebook’s nineteenth displays a copyright notice. It reads: “Copyright © 2010 by the Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal.” A review of U.S. Copyright Office records establishes that the book has been registered.

Disturbed by the treatment of Frank Bennett (recounted above) Carl Malamud proceeded down a more confrontational path. Last June he sent copies of a complete electronic replica of The Bluebook to several legal academics, and placed a small portion online. In doing so, he asserted that since several U.S. courts require that all citations in briefs or memoranda conform to The Bluebook its rules were (or ought to be) in the public domain. These actions drew a prompt response. A lawyer representing one of The Bluebook’s owners requested that Malamud cease distributing full copies of the guide and immediately take down the portions he had placed online, at the same time promising serious consideration of the access issues he raised. That process of “serious consideration” continues. In May Malamud received another letter. It represented that the book’s proprietors were “evaluating potential arrangements that would expand the availability of The Bluebook conventions, while at the same time, preserving the law reviews’ copyright interests and decades-long investment in The Bluebook.”

Note the distinction. Malamud’s response picked up on it at once. The citation conventions (or style or system) described in The Bluebook are not protected by its copyright. The U.S. Copyright Act is explicit on this point:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

17 U.S.C. § 102(b).

On the other hand, although the phrase “literary work” may not seem totally apposite The Bluebook is surely an “original work of authorship … fixed in [a] tangible medium of expression.” So long as a competing work (the ALWD Guide to Legal Citation or Introduction to Basic Legal Citation, for that matter) avoids employing the specific means used by The Bluebook to explain how to cite (e.g., its words, phrases, selected examples) that work can instruct readers on how to produce citations identical to those generated by careful use of The Bluebook. The same holds for citation software or online data vendors. Both Lexis Advance and WestlawNext generate citations that are included with material copied from their collections. Users have a choice among several different formats. “Bluebook” style appears on neither list, the default format for both being labeled “Standard”. Yet for important categories of material the “Standard” format that both produce conforms to the conventions set out in The Bluebook. Can these and other online data vendors deliver Bluebook citations without the permission of the book’s copyright holder? Surely, they can even though the reference book itself is covered by copyright and the distribution of verbatim copies is, for that reason, problematic.

3. The terms and conditions of use agreed to by users of The Bluebook Online and related aps

Those who click rather than page their way into the content of The Bluebook at www.legalbluebook.com are told that by doing so they agree not to display its trademarks without prior written approval or “create derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit the information …[it contains], in whole or in part.” Apparently, while those that run The Bluebook enterprise take the IP rights represented by the circled “C” and circled “R” very seriously, they are not content to leave their proprietary claims to the contours of copyright and trademark law.

4. And who holds these IP rights with the right to license their use or sue for infringement?

There is no Bluebook Inc. The Bluebook‘s copyright notice and registration list four separate entities as owners: the Columbia Law Review Association, the Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal. The same four appear on the trademark registration. Without knowing more about the agreements among these co-owners one can only speculate about how decisions might get made or, more likely, fail to get made.

Who at each of the four was responsible for deciding what to do with Frank Bennett’s email asking for assurance that his software wouldn’t infringe? Did his question even get beyond one.  Three of the journals are published by non-profit corporations.  The fourth, The University of Pennsylvania Law Review, is simply a university activity. Professor Bennett wrote one of the journals and heard back, ultimately, from one of its editors. Are such decisions really lodged in the hands of here-today, gone-tomorrow law students?

One intriguing possibility is that the governing body for any one of the four journals could license The Bluebook, that being the default rule with joint works of authorship. Could a venture guided by so many lawyers and soon-to-be lawyers have left the matter in that posture? On the other hand, if the four must come to an agreement among themselves when confronted with a Bluebook rights or licensing issue, the representation that “The law reviews are evaluating potential arrangements that would expand the availability of The Bluebook conventions ….” seems unlikely to yield results anytime soon.

Pennsylvania Supreme Court Drops Parallel Citation Requirement

May 20th, 2014

West Publishing (now Thomson Reuters) took over publication of the Pennsylvania Reports forty years ago. The headnotes, key numbers, and other editorial interventions of that series of books have, ever since, been drawn straight from the National Reporter System.  However, Pennsylvania Reports page and volume numbers remained independent of those that identify Pennsylvania decisions in the Atlantic Reporter. Because of that divergence the state’s rules of appellate procedure required parallel case citations of Pennsylvania decisions. Explaining that this did not impose an unreasonable burden on the bar, the rule’s Official Note explained:

Counsel having available the Atlantic Reporter can readily obtain the official citation from cross-reference sheets ordinarily pasted on the flyleaf of each Atlantic Reporter volume; counsel having the official reports available can obtain the Atlantic Reporter citation from cross-references available in Shepard’s Pennsylvania Citations – Case Edition or the National Reporter Blue Book.

“Cross-reference sheets … pasted on the flyleaf of each Atlantic Reporter volume”! That was a different era. Today, because volume and page number pairs extracted from either reporter will retrieve the cited case from all online research services used by Pennsylvania judges and attorneys the requirement serves no purpose. Last month the Pennsylvania Supreme Court removed it (and the portion of the Official Note quoted above).

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No longer will attorneys have to cite to the still nominally “official” Pennsylvania Reports. It remains to be seen whether Pennsylvania’s appellate judges will themselves drop the unnecessary parallel cites. Thomson Reuters has slashed the price for a full set of the Pennsylvania Reports from $2,790 to $2,232.00.
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They do look handsome on the shelf.

The ALWD Guide Capitulates

May 13th, 2014

alwd

The fifth edition of the ALWD Citation Manual was published this past month, renamed the ALWD Guide to Legal Citation and stripped of the previous subtitle “A Professional System of Citation.” That event warrants attention here. This post is the first but probably not the last commenting on this latest version of what has been an important citation reference and teaching book. (In view of the name change I’ll refer to it hereafter as the ALWD guide rather than switching back and forth between “manual” and “guide.”)

The obvious place to begin is with the work’s final capitulation to The Bluebook. The publisher’s description highlights this edition’s elimination of “stylistic differences between the ALWD Manual and the Bluebook, to help combat the perception that students who learn citation with ALWD do not know how to ‘Bluebook.’

 1. Editions 1 through 4

When first introduced in 2000, the ALWD guide offered an alternative approach on numerous issues of style. Fundamentally it set forth a “single and consistent set of rules for all forms of legal writing.” It rejected The Bluebook’s “separate and inconsistent systems” for academic writing and professional writing in the form of memoranda and briefs. Its citation rules were derived, it said, from professional consensus. Finally, reflecting the reality that in the world of law practice rules and practices specific to a jurisdiction often trump academically proclaimed “uniform” rules, it included an appendix detailing “local citation rules or preferences.” The subtitle accurately reflected this professional perspective.

The original ALWD guide didn’t allow itself to be trapped by The Bluebook’s inconsistencies. When the citation practice in some jurisdictions or courts offered a less cumbersome format than The Bluebook prescribed, the 2000 ALWD guide felt free to embrace it. ALWD members and fans of its guide were not content with securing its adoption by legal writing faculty. They sought to persuade law journals to adopt its style. They lobbied courts whose rules mandated Bluebook compliance to accept ALWD style as an alternative. In both respects they realized some success, although, no doubt, less than they had hoped for.

ALWD’s second edition (2002) maintained this independent stance. By the third (2006) the hope of winning over a critical mass of law journals had been relinquished, and consistent typeface conventions disappeared. For the first time the guide offered instruction on where and how to use large and small capital letters when “working with a journal or publisher that requires you to use this convention.” It also yielded on the typeface to be applied to statutory titles (“ordinary” rather than the “italics” called for by editions 1 and 2). The fourth edition (2010) brought further erosion. From the beginning the ALWD table of case name abbreviations had eschewed contractions. In the fourth edition for every word The Bluebook abbreviated with a contraction, the ALWD guide now offered that contraction as an alternative, coupled with the advice that if the writer chose to use contractions they should be used “consistently throughout the paper.” But on any number of other points ALWD style remained distinct.

No longer. Those few journals that call for the citations in article submissions to be formatted in ALWD style and state rules of procedure (like those in Alabama and Idaho) that specify ALWD style as a Bluebook alternative have been rendered dead letter. Why the complete surrender? Pressure from the guide’s main market segment and constituency, law students and those who teach them. The preface to the fifth edition explains (without once naming The Bluebook): “Feedback from membership surveys pointed to the staying power of certain scholarly traditions in legal citation and urged that ALWD modify its rules to acknowledge those traditions.” In the fifth edition, the publication’s ambition appears reduced to doing a better job than The Bluebook of delivering Bluebook content.

2. Positions Surrendered

What are some of the points on which ALWD has given up its distinct, reasonable and professionally grounded position?

a. Appellate court abbreviations

A simple one concerns the abbreviation for a state’s intermediate appellate court to be used when the cite itself does not identify the court. For example, the writer wishes to cite a decision of the Florida Court of Appeals, the Minnesota Court of Appeals, or the Texas Court of Appeals using its volume and page number in the National Reporter System. Per The Bluebook that is done as follows: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. Ct. App. 2007). Before the fifth edition the ALWD work took the sensible position that “Ct.” was unnecessary and instructed that the citation be written: Szarzynski v. Szarzynski, 732 N.W.2d 285 (Minn. App. 2007). Several considerations commend that approach not the least of which is that Minnesota courts and lawyers employ that style. Jurisdictions that have implemented print-independent or neutral citation schemes along the lines recommended by the A.B.A. and the American Association of Law Libraries use the state abbreviation and “App” to designate decisions of intermediate appeals courts. Nor do they stand alone. In their citation practice any number of courts and lawyers employ the more economic “Fla. App.”, “Minn. App.”, and “Tex. App.” Sadly, the fifth edition of ALWD has abandoned that approach. Stripping unnecessary elements or characters from citations is always desirable.

b. Treatment of the Federal Appendix reporter

Another unfortunate point of Bluebook merger is on the abbreviation to be used in citations to that ridiculous reporter of “unreported” decisions, the Federal Appendix. The publisher’s abbreviation for this series is “Fed. Appx.” and that is how past editions of ALWD had it. Knowledgeable Bluebook users know that it favors “Fed. App’x”. A citation which The Bluebook would have be written, Robinson v. Allstate Ins. Co., 508 Fed. App’x 7 (2d Cir. 2013), ALWD and the publisher formatted as Robinson v. Allstate Ins. Co., 508 Fed. Appx. 7 (2d Cir. 2013). Although this is a point of style on which the federal courts are themselves divided, a search of recent federal decisions uncovers a preference for “Fed. Appx.” of over two-to-one. Appealing the matter all the way to the top, one discovers that the Supreme Court consistently employs “Fed. Appx.” There is no justification other than conformity for the ALWD guide to yield on this point.

c. Use of contractions in case names

The Bluebook’s use of “App’x” rather than “Appx.” reflects a general attachment to contractions. They dot its list of abbreviations to be used in case names – “Ass’n” for “Association”, Comm’r for Commissioner, Dep’t for Department, Eng’r for Engineer, Fed’n for Federation, Int’l for International, and so on. As noted above, prior to the fourth edition, the ALWD guide’s abbreviations contained no apostrophes; all ended with periods (e.g., Engr. and Intl.). The fourth edition authorized use of contractions as an alternative (e.g., Engr. or Eng’r, Intl. or Int’l). This new fifth edition specifies contractions wherever The Bluebook does without an alternative. Where The Bluebook takes an inconsistent approach (“Envtl.” rather than “Envt’l”) ALWD now follows. Such slavish conformity cannot be justified in terms of uniformity of professional practice, for in this area, most especially, citation norms vary enormously.

d. Internet materials

In its coverage of materials available on the Internet ALWD’s fourth edition called for the URL to be placed in parentheses and for the citation to conclude with a date. In order of preference that date was to be either one explicitly carried by the document itself, or the date the site indicated it was most recently updated (“last updated”), or the date the writer last accessed the material (“accessed”).

To adhere to The Bluebook’s style on these points ALWD’s fifth edition had to strip the parentheses, change “last updated” to “last modified” and “accessed” to “last visited.” The citation treatment of Web materials does continue to evolve, and all these changes can find support in current professional practice. On the other hand, ALWD’s prior style choices were thoroughly defensible, and the conversion of “last updated” to “last modified” can only be explained on grounds of Bluebook conformity. The U.S. Supreme has gone both ways on the matter, and, as on so many other citation details, it follows its own style, using the phrase “as visited” to describe the date it accessed a Web-based document.

e. Et al.

Other points on which the ALWD fifth edition bows to Bluebook style include the citation of:

3. Bottom Line

The removal of the ALWD work’s prior subtitle is telling. The guide no longer provides an independent compilation or codification of professional practice. In joining the legion of “how to cite according to The Bluebook” books and study aids it reinforces the erroneous impression that U.S. legal citation style is both uniform and static. That was not true in 2000 when the ALWD guide first appeared. It is even less true today as the transformation and proliferation of legal information sources continues to accelerate. New and knotty issues of citation policy call for serious attention and fresh approaches. It is truly unfortunate that ALWD has ceded all initiative to others.

Judges Revising Opinions after Their Release

April 29th, 2014

A. Background: How legislatures and agencies handle revision

1. Revision by Congress

When Congress enacts and the President signs a carelessly drafted piece of legislation it becomes the law.  All must live with, puzzle over, and, in some cases, find an ad hoc way to cite what Congress has done.  Congress can clarify the situation or correct the error but only by employing the same formal process to amend that it previously used to enact.  In October 1998, Congress passed two separate bills adding provisions to Title 17 of the U.S. Code, the Copyright Act.  Both added a new section 512.  Embarrassing?  Perhaps.  Did this pose a serious question of Congressional intent?  No.  Clearly, the second new 512 was not meant to overwrite the first; the two addressed very different topics.   Did this pose a problem for those who wanted to cite either of the new sections?  For sure, but one readily addressed either by appending a parenthetical to disambiguate a reference to 17 U.S.C. § 512 or by citing to the session law containing the pertinent 512.  In time the error was resolved by a law making “technical corrections” to the Copyright Act.  One of the two sections 512 was renumbered 513.

tech_correction

During 2013 Congress passed four pieces of legislation that made “technical corrections” to scattered provisions of the U.S. Code.  Unsurprisingly, tidying up drafting errors of this sort is not a high Congressional priority.  For ten years there have been two slightly different versions of 5 U.S.C. § 3598; for nearly eighteen, two completely different versions of 28 U.S.C. § 1932.  The Code contains cross-references to non-existent provisions and myriad other typos.  Some are humorous (as, for example, the definition of “nongovernmental entities” that includes “organizations that provide products and services associated with … satellite imagines).  The various compilers of Congress’s work product do their best to note such glitches where they exist and, if possible, suggest that body’s probable intention.  They do not, however, view themselves as at liberty to make editorial corrections.

2. Agency typos and omissions

Pretty much the same holds for regulations adopted by federal administrative agencies.  When a final regulation contains inept language, a typo, or some other drafting error, the Office of the Federal Register publishes it “as is”.  The authoring agency must subsequently correct or otherwise revise by publishing an amendment, also in the Federal Register.  Until the problem is caught and addressed through a formal amendment, the original version is “the law.”  In the meantime, all who must understand or apply it – agency personnel, the public, and courts – must interpret the puzzling language in light of the agency’s most likely intent.  The Federal Register is filled with regulatory filings making “correcting amendments.”  A search on that phrase limited to 2013 retrieves a total of eighty.  For a pair of straightforward examples see 78 Fed. Reg. 76,986 (2013).

revised_reg

B. Judicial opinions – An altogether different story

With judicial opinions the situation is startlingly different.  When judges release decisions containing similar bits of sloppiness, the process for correcting them is far less certain and, with some courts, far less transparent.  What sets courts apart from other law enunciating bodies in the U.S. is their widespread practice of unannounced and unspecified revision well after the legal proceeding resulting in a decision binding on the parties has concluded.  Several factors, some rooted in print era realities, are to blame.

To begin, most U.S. appellate courts began the last century with the functions of opinion writing and law reporting in separate hands.  Public officials, commonly called “reporters of decisions” cumulated the opinions issued by appellate courts and periodically published them in volumes, together with indices, annotations, and other editorial enhancements.  Invariably, they engaged in copy editing and cite checking decision texts, as well, subject to such oversight as the judges cared to exercise.  The existence of that separate office together with the long period stretching from opinion release to final publication in a bound volume induced judges to think of the opinions they filed in cases, distributed to the parties and interested others in “slip opinion” form, as drafts which they could still “correct” or otherwise improve.  That mindset combined with the discursive nature of judicial texts, their attribution to individual authors, and judicial egos can produce a troubling and truly unnecessary level of post-release revision.  At the extreme, judicial fiddling with the language of opinions doesn’t even end with print publication.  Dissenting in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), Justice Thomas wrote: “The principle ‘ingredient’ for ‘energy in the executive’ is ‘unity.’” (The quoted fragments are from No. 70 of the Federalist Papers.)  That was June 2004.  The sentence remained in that form in the preliminary print issued the following year and the final bound volume which appeared in 2006.  Volume 550 of the United States Reports published in 2010, however, contains an “erratum” notice that directs a change in that line of Thomas’s dissent, namely the substitution of “principal” for “principle.”  Six years after the opinion was handed down, it is hard to understand who is to make that change and why — beyond salving the embarrassment of the author.  None of the online services have altered the opinion.

 erratum

Judges, even those on the highest courts, make minor errors all the time.  What they seem to have great difficulty doing is letting them lie.  This seems particularly true of courts for which print still serves as the medium for final and official publication.  The Kansas Judicial Branch web site explains about the only version of opinions it furnishes the public:

Slip opinions are subject to motions for rehearing and petitions for review prior to issuance of the mandate. Before citing a slip opinion, determine that the opinion has become final. Slip opinions also are subject to modification orders and editorial corrections prior to publication in the official reporters. Consult the bound volumes of Kansas Reports and Kansas Court of Appeals Reports for the final, official texts of the opinions of the Kansas Supreme Court and the Kansas Court of Appeals. Attorneys are requested to call prompt attention to typographical or other formal errors; please notify Richard Ross, Reporter of Decisions ….

Since the path from slip opinion to final bound volume can stretch out for months, if not years, the opportunity for revision is prolonged.  Moreover, unless the court releases a conformed electronic copy of that print volume, changes, large or small, are hard to detect.  Interim versions, print or electronic, only compound the difficulty.  For those who maintain case law databases and their users this can be a serious problem, one some of them finesse by not bothering to attempt to detect and make changes reflected in post-release versions.

A shift to official electronic publication inescapably reduces the period for post-release revision since decisions need no longer be held for the accumulation of a full volume before final issuance.  On the other hand, staffing and work flow patterns established during the print era can make it difficult to shift full editorial review, including cite, and quote checking to the period before a decision’s initial release.  Difficult, but not impossible – the Illinois Reporter of Decisions, Brian Ervin, who retired earlier this year, appears to have achieved that goal when the state ceased publishing print law reports in 2011.  Reviewing the Illinois Supreme Court’s decisions of the past year using the CourtListener site in the manner described below, reveals not a single instance of post-release revision.

Procedures in some other states that have made the same shift specify a short period for possible revision, following which decisions become final.  Decisions of the Oklahoma Supreme Court, for example, are not final until the chief justice has issued a mandate in the case and that does not occur until the period for a rehearing request has passed.  Decisions are posted to the Oklahoma State Court Network immediately upon filing, but they carry the notice: “THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.”  Once the mandate has issued, a matter of weeks not months, that warning is removed and the final, official version is marked with the court’s seal.  In New Mexico, another state in which official versions of appellate decisions are now digital, a similar short period for revision is embedded in court practice.  Decisions are initially released in “slip opinion” form.  “Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk …. [During the interim the] New Mexico Compilation Commission provides editorial services such as proofreading, applying court-approved corrections and topic indices.”  As a result of that editorial process, most decisions receive minor revision.  For a representative example, see this comparison of the slip and final versions of a recent decision of the New Mexico Supreme Court (separated in time by less than a month).  Once a decision can be cited, it is in final form.

Typically, when legislatures and administrative agencies make revisions the changes are explicitly delineated.  Most often they are expressed in a form directing the addition, deletion, or substitution of specified words to, from, or within the original text.  Except in the case of post-publication errata notices, that is not the judicial norm.  Even courts that are good about publicly releasing their revised decisions and designating them as “substitute”,” changed”, or “revised” (as many don’t) rarely indicate the nature or importance of the change.  So long as all versions are available in electronic form, however, the changes can be determined through a computer comparison of the document files.  Such a comparison of the final bound version of Davis v. Federal Election Commission, 554 U.S. 724 (2008) with the slip version, for example, reveals that at page 735 the latter had erroneously referred to a “2004 Washington primary.”  The later version corrects that to “2004 Wisconsin primary” – simple error correction rather than significant change.

sct_revision

More disturbing, by far, are:

  1. the common failure to provide the same degree of public access to revised versions of decisions as to the versions originally filed, and
  2. the substitution of revised versions of decisions for those originally filed without flagging the switch.

Any jurisdiction which, like Kansas, still directs the public and legal profession to print for the final text of an opinion without making available a complete digital replica is guilty of the first.  Less obviously this is true of courts which, like the U.S. Court of Appeals, leave distribution of their final, edited opinions to the commercial sector.  Less conspicuous and, therefore, even more troubling are revisions that courts implement by substituting one digital file for another before final publication.  A prior post noted one example of this form of slight-of-hand at the web site of the Indiana Judicial Branch.  But the Indiana Supreme Court hardly stands alone.  Thanks to the meticulous record-keeping of the CourtListener online database such substitutions can be detected.

Like other case law harvesters, CourtListener regularly and systematically examines court web sites for new decision files.  Unlike others it calculates and displays digital fingerprints for the files it downloads and stores the original copies for public access.  When a fresh version of a previously downloaded file is substituted at the court’s site, its fingerprint reveals whether the content is at all different.  If the fingerprint is not the same, CourtListener downloads and stores the second file.  Importantly, it retains the earlier version as well.  Consequently, a CourtListener retrieval of all decisions from a court, arrayed by filing date, will show revisions by substitution as multiple entries for a single case.  Applied to the decisions of the U.S. Supreme Court during calendar 2011 this technique uncovers ten instances of covert revision.  Happily, none involved major changes.  The spelling of “Pittsburg, California” was corrected in a majority opinion by Justice Scalia, “petitioner” was changed to “respondent” in a majority opinion by Justice Kennedy, “polite remainder” in a Scalia dissent became “polite reminder”, and so on.  The perpetually troublesome “principal/principle” pair was switched in a dissent by Justice Breyer.

Most post-release opinion revisions involve no more than the correction of citations and typos like these, but the lack of transparency or any clear process permits more.  And history furnishes some disturbing examples of that opportunity being exploited.  Judge Douglas Woodlock describes one involving the late Chief Justice Warren Berger in a recent issue of Green Bag.  Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

C. Some unsolicited advice directed at public officials who bear responsibility for disseminating case law (reporters, clerks, judges)

1. Minimize or eliminate post-release revision

In this era of immediate electronic access and widespread redistribution, courts should strive to shift all editorial review to the period before release, as Illinois has done.  Judges need to learn to live with their minor drafting errors.  Finally, whatever revision occurs prior to final publication, none should occur thereafter.  In the present age issuance of errata notices years after publication is a pointless gesture.

2. If decisions are released in both preliminary and final versions, make them equally accessible

While the final versions of U.S. Supreme Court decisions are much too slow in appearing, when they do appear they are released in both print and a conformed electronic file.  Most U.S. courts are like those of Kansas and fail to release the final versions of their decisions electronically.  Furthermore, some that do, California being an example, release them in a form and subject to licensing terms that severely limit their usefulness to individual legal professionals and online database providers.

3. Label all decision revisions, as such, and if the revision is ad hoc rather than the result of a systematic editorial process, explain the nature of the change

At least twice this year the Indiana Supreme Court released opinions that omitted the name of one of the attorneys.  As soon as the omission was pointed out, it promptly issued “corrected” versions.  In one case (but not the other) the revision bears the notation that it is a corrected file, with a date.  In neither case is the nature of or reason for the change explained within the second version.  As noted above, too many courts, including the nation’s highest, make stealth revisions, substituting one opinion text for a prior one without even signaling the change.

4. If revision goes beyond simple error correction, vacate the prior decision and issue a new one (following whatever procedure that requires)

United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010), discussed in a prior post, provides a useful illustration of this commendable practice.  United States v. Burrage, No. 11-3602 (8th Cir. Apr. 4, 2014), falls short, for while it explicitly vacates the same panel’s decision of a month before, it fails to explain the basis for the substitution.

 

If the Judge Will Be Reading My Brief on a Screen, Where Should I Place My Citations?

April 8th, 2014

A. Introduction

In a prior post I explored how the transformation of case law to linked electronic data undercut Brian Garner’s longstanding argument that judges should place their citations in footnotes.  As that post promised, I’ll now turn to Garner’s position as it applies to writing that lawyers prepare for judicial readers.

Brief Page

Implicitly, Garner’s position assumes a printed page, with footnote calls embedded in the text and the related notes placed at the bottom.  In print that entirety is visible at once.  The eyes must move, but both call and footnote remain within a single field of vision.  Secondly, when the citation sits inert on a printed page and the cited source is online, the decision to inspect that source and when to do so is inevitably influenced by the significant discontinuity that transaction will entail.  In print, citation placement contributes little to that discontinuity.  The situation is altered –  significantly, it seems to me  –  when a brief or memorandum is submitted electronically and will most likely be read from a screen.  In 2014 that is the case with a great deal of litigation.

B. Electronic briefs and memoranda filed with federal courts

Except for the Supreme Court, electronic filing is available in nearly all federal courts and proceedings.  In many it is mandatory.  With some federal courts that has been true for years.  The recent advent of the iPad and follow-on tablets has allowed judges and their law clerks to place electronically filed case documents on the screen of a highly portable computer, one that is capable of accessing the full case record and the online legal research services used by the court with minimal interruption.  A internal survey conducted by Federal Judicial Center in early 2012 found that fifty-eight percent of the judges in federal appellate, district and bankruptcy courts used an iPad for court work.

Inexorably that has led some judges to press for links between the citations in the documents they read from the screen and the authorities or portions of the record to which they refer.  Local rules commonly permit their inclusion.  Local Rule 25.1(i) of the Second Circuit is typical.  It provides:

(i) Hyperlinks. A document filed under this rule may contain hyperlinks to (i) other portions of the same document or to other documents filed on appeal; (ii) documents filed in the lower court or agency from which the record on appeal is generated; and (iii) statutes, rules, regulations, and opinions. A hyperlink to a cited authority does not replace standard citation format.

An ad hoc group of federal judges and judicial staff has taken the further step of affirmatively encouraging such links.

The judges of the Fifth Circuit, not content to leave the matter to attorney initiative, prevailed upon the chief of the court’s technology division, Ken Russo, to develop an application that converts citations in e-filed briefs to links.  In the case of citations to the record, the links retrieve the cited portion from the CM/ECF system.  Citations of authority are linked to the online service of the reader’s choice (which during a period of transition between “classic” and next generation systems at both Westlaw and Lexis may well be different for judges and law clerks).  Since the brief author or opposing counsel may be an attorney who uses Fastcase or Casemaker (both of which are represented in the states which comprise the Fifth Circuit) Russo’s system also contemplates those services as link options.  To facilitate the programmatic linking of references to the record, the court issued a local rule, effective December 1, 2013, prescribing a new and distinctive format for such citations.  Finally, anticipating similar link-related format changes in the future, the circuit has issued a rule 25.2.15 authorizing the clerk to “make changes to the standards for electronic filing to adapt to changes in technology.”

C. E-filing in Texas and other states

Electronic filing has progressed more slowly and unevenly in state courts.  Nonetheless, it has a presence in most states, with mandatory e-filing existing to some degree in nearly half.  Leading the pack, especially at the appellate level, is Texas.  (Appellate e-filing in other states is summarized in a recent survey conducted by Blake Hawthorne, Clerk of the Texas Supreme Court.)  On January 1, 2014, electronic filing became mandatory for cases in the Texas Supreme Court and for civil cases in the state’s intermediate courts of appeals.  Like other appellate rules, federal and state, those in Texas had already been adjusted to the modern era by the conversion of document length limits from pages to maximum word counts.  Because these are documents Texas judges read from screens of various sizes the minimum font size was, at the same time, increased from 12 point to 14.  (All justices of the Texas Supreme Court have tablets and smart phones.)  To ease the transition,  court staff prepared detailed guidance on how to prepare briefs that not only comply with the new rules but are optimized to fit judicial work patterns and preferences.  One guide includes advice on such points as how to structure a pdf document so as to facilitate the reader’s navigation through it, why and how to link to cited authority, and how to set the document’s original display in view of the writer’s uncertainty about the screen real estate it will occupy.

D. The implications for citation placement

As noted in the prior post, today’s online legal research environment has replaced the judicial opinion “page” as the unit of view with the continuously scrollable document.  Page break locations necessary for pinpoint citation are indicated, but there being no true page, footnotes are either moved to the document’s end or displayed in close proximity to their calls.  The dominance of pdf as the format for e-filed documents might encourage the impression that, by contrast, the page remains a meaningful unit in the electronic brief.  But whenever the reader may be working from a screen rather than a print copy of the file that impression is deceptive.  In varying degrees, desktop, laptop, tablet, and smart phone all place the reader in control over how a pdf file is displayed.  Depending on the device and application, readers may be able to open bookmarks allowing navigation within a document, immediately adjacent to its text.  By zooming, they can increase the perceived size of the font at the expense of the amount of text they see on the screen.  They can choose to scroll rather than page through a document.  Footnotes remain footnotes, but on the screen there is a strong probability they will not be visible at the same time as the segment of the text to which they relate.

If the electronic document has been prepared with care, its footnote calls will be linked to the notes, and if citations have been linked to the cited authorities either by the author or, as in the Fifth Circuit, by court software, the path to those authorities will not depend on the citations’ sharing the reader’s field of vision with the propositions they support.  On the other hand, the reader’s decision over whether and when to inspect a cited source now involves greater discontinuity than simple eye movement.

I will concede, as Garner stresses, that embedded citations inescapably interrupt the flow of the writer’s exposition, but use of that format is the only way, in an electronically filed brief, to assure that one’s citations are seen together with the textual material to which they relate.  To the extent that a citation operates purely as a reminder to a judicial reader that proximity is useful.  More importantly, however, if the judge or law clerk need simply touch or click the citation to view the authority or portion of the record to which it points, proximity at once informs and invites that move.  That should be a move that a brief’s author will want to facilitate.  For while judges write their decisions with authority and cite primarily to explain, lawyers write memoranda and briefs to persuade and cite to invoke the authority of others.

In sum, as more and more judges read lawyer submissions from a screen, with the near instant capability to follow citations to the case, statute, or record excerpt to which they refer, those who previously placed citations in footnotes have strong reason to reconsider.

E. Judge for yourself

The briefs filed with the Texas Supreme Court are available for inspection at a public web site.  By court mandate they are filed in pdf.  As the result of court encouragement many contain citations that can be executed by touch or click.  Court staff tell me that the shift to electronic media has led to fewer briefs with their citations in footnotes.  That pattern has not vanished, however.  As a result, the court’s site contains examples of the alternative styles that anyone can examine and compare.  I invite you to conduct the following experiment:

Download the following two briefs and work your way through them as though you were a judge.  While doing so, consider these questions, bearing in mind the extent to which your answers are affected by the device and software you are using and the preferences you have set:

  • Can one see the citation and the text it supports at the same time or does that require a scroll, click, or touch?
  • If and when one chooses to follow the linked citation to the referenced source (and back) to what degree is that move facilitated or rendered more awkward by the citation’s placement?

From a current, high profile case:

F. Deeper issues raised by citations that are links

Citation placement is by no means the only or even the most important issue raised by the conversion of citations in briefs into executable pathways leading directly to the cited text or document.  That larger topic will be the subject of a later post.