The First Opinion of the Supreme Court’s 2017 Oct. Term Is Now Out – How Many Years Before It Will Be Published in Final, Official Form?

January 11th, 2018

At the beginning of this week, on January 8, 2018, the U.S. Supreme Court released its first opinion of the current term. The decision in Tharpe v. Sellers, consists of a three-page per curiam, followed by a thirteen-page dissent written by Justice Thomas, joined by Justices Alito and Gorsuch. As posted at the Court’s web site readers are, perversely, invited to cite Tharpe as “583 U.S. ___ (2018)”.

In the form presented the citation is of little use. Only future decisions of the Court itself would dare to employ such an incomplete reference, at least without adding a parallel citation to facilitate precise retrieval. The Court’s practice is to leave that task to others. The Thomas dissent in Tharpe cites two 2017 decisions simply as: “Buck v. Davis, 580 U. S. ___ (2017) and Pena-Rodriguez v. Colorado, 580 U. S. ___ (2017)”. This approach forces his jump cite for a passage in the latter to read: “580 U. S., at ___ (slip op., at 17)”. Bloomberg Law, Lexis, and Westlaw have already augmented all such useless references with complete parallel cites to one or more unofficial reports.

The question revisited here is how long it will be before Tharpe‘s skeletal “official” citation is filled in, along with those for succeeding opinions that in time will make up volume 583 of the United States Reports. (The delay in Supreme Court decision publication and its effect on citation have been the subject of two prior posts, one in 2014, the other in 2016.)

By now both the legislative and executive branches of the federal government have embraced digital publication in ways that provide researchers with citable versions of the United States Code and the Code of Federal Regulations far more up-to-date than print ever allowed. They lag official action by days not years. Yet the judiciary, led by the Supreme Court, remains stuck in a print-dependent approach to publication and citation. The demand for print law reports has, of course, plummeted. At the same time federal budgets have grown tighter. The result? Growing delays.

Extrapolation from the most recent past yields a prediction will be years (four and a half to five) before Tharpe and succeeding decisions released during the next month and a half will be distributed in a “preliminary print” volume containing consecutive page numbers. That temporary, paperbound book will be labeled “Part 1 of volume 583” of the United States Reports. Unfortunately, no electronic copy of it will be released to the public. The preliminary print edition of Part 2 containing another month and a half of decisions will follow. Ultimately, those two parts will be combined into a single digital file representing the full volume. Up to a year later the bound volume of “583 U.S.” will be distributed to depository libraries and other institutions that have ordered copies. And finally, only after that, will the digital file of the volume’s final text and page numbers be placed at the Court’s web site.  Total elapsed time? Unless the Court’s procedures change, Tharpe v. Sellers won’t be published in final, official printed form until 2023. And the digital replica of that volume won’t be released until some later point in the same year. (The sequence alone prompts two simple questions: (1) Why delay the release of the electronic volume until after the print version has shipped? (2) Why withhold the electronic files of the prior preliminary print edition?)

The two earlier posts detail the costs imposed on others by these delays, as well as specific steps the Court could take to remove them from its publication process. As 2018 gets underway, the only observation to make is that the problem has not diminished, and the Supreme Court appears oblivious to it.

 

Citing the Code of Federal Regulations

December 11th, 2017

I. C.F.R. Versus e-CFR and its Progeny?

A. The Historic Print-Determined Timeline

Federal regulations pose the same fundamental citation question as do provisions in the United States Code. On January 18, 2017, important new and amended regulations governing the determination of disability benefit claims under the Disability Insurance and Supplemental Security Income programs were published in the Federal Register.


January 18, 2017

The changes took effect on March 27. The Federal Register for that very date contained a series of “technical amendments” cleaning up minor drafting errors in the January version of the text. Those corrections arrived just in time to beat the April 1st cutoff date for the volume of the 2017 print edition of the Code of Federal Regulations that contains Part 404 of Title 20. That is where the regulations governing these programs are organized. (The Code’s annual editions are published in four waves: “[T]itles 1-16 are revised as of January 1; titles 17-27 are revised as of April 1; titles 28-41 are revised as of July 1; and titles 42-50 are revised as of October 1.”)

In due course the volume containing all Social Security Administration regulations, as of April 1, 2017, was published by the Office of the Federal Register of the National Archives and Records Administration. In that physical form the new regulations, fully compiled and in context, made their way to Federal Depository Libraries, arriving in mid-September.


Date of Arrival: September 13, 2017

Following distribution of the printed volume, a digital replica in PDF was placed online as part of the Government Publishing Office’s Federal Digital System (FDsys).

The citation issue posed by that schedule is this: During the eight months that separated initial publication of these regulations from their appearance in a volume of the “official” Code of Federal Regulations (print and electronic) would it have been appropriate to cite them in accordance with the code location designations they carried from the moment of release? Take the revised 20 C.F.R. § 404.1521, for example. The pre-2017 version of that section dated from 1985. How should a legal memorandum written and filed in July 2017 have cited the text of the section by then in effect?

Citation norms, formed during the era in which the printed volumes of the Code of Federal Regulations and its companion, the Federal Register, were the only trustworthy means of accessing federal regulatory texts, would require citing such a recently revised provision to the Federal Register issue dated January 18, 2017, until the C.F.R. volume holding it could be inspected.

B. e-CFR and Derivative Compilations

Today the same public offices that publish the official Code of Federal Regulations also prepare and disseminate online a continuously updated version of the Code they call the “Electronic Code of Federal Regulations” or e-CFR. It lags the most recently published final regulations by a few days, at most.

On December 8, for example, all sections of the e-CFR were current as of December 6. As is true with the Office of Law Revision Counsel’s online version of the United States Code, the e-CFR can be downloaded in bulk (in XML). That makes it possible for all major online legal information services to offer comparably up-to-date versions of the C.F.R. In short, in the current research environment, the lawyer, judge, or legal scholar who would read, quote, and cite to provisions of the Code of Federal Regulations as they stand at the moment of writing has no excuse not to draw upon the e-CFR or one of its reliable derivatives. (The latter include up-to-date versions of the C.F.R. maintained by Bloomberg Law, Lexis, Westlaw, and Cornell’s Legal Information Institute (LII).)

II. Chronological Version as Distinguished from Source

A. Disambiguating Recently Altered Provisions

Unless the citation to a compilation like the Code of Federal Regulations or the United States Code indicates otherwise, it will be understood as pointing  to the cited portion as it stood at the time of writing. Recent regulatory (or statutory) changes to a provision are likely to require a parenthetical note to remove uncertainty about the reference. With a citation to 20 C.F.R. § 404.1521, for example, the reader will want to know whether the writer is invoking the section’s language before or after the 2017 revision. The writer may well also want to signal to the reader that she is aware of the change. On this score an initial citation reading “20 C.F.R. § 404.1521 (as amended in 2017)” or even “20 C.F.R. § 404.1521 (as amended, 82 Fed. Reg 5844, 5868 (Jan. 18, 2017))” is more useful than one that simply furnishes the year of the most recent official publication or the “as of” date of an unofficial version. On the other hand, a citation to 20 C.F.R. § 404.130, which was last amended in 1990, need carry no such baggage.

The existence of the chronological slices represented by the annual official versions does provide a ready means for citing to provisions as they once read. So long as the context makes it clear that the writer means to refer to the language of the section as it stood before the recent change, a citation reading “20 C.F.R. § 404.1521 (2016)” should suffice. But standing alone, one reading “20 C.F.R. § 404.1521 (prior to the Jan. 18, 2017 amendment)” provides a reader with more information. The GPO’s online archive of past C.F.R. editions, which reaches back to 1996, allows retrieval of no-longer-current regulatory texts on the basis of such references.

B. The Citation Manuals’ Requirement of a Date Element in All Cases

Rule 14.2(a) of The Bluebook calls for a C.F.R. citation to include the year of the cited section’s “most recent edition.” No exceptions. The mandate applies to a provision like 20 C.F.R. § 404.130 which has not been amended for over a quarter century. For a citation in a memorandum completed in July 2017, this rule would require  “20 C.F.R. § 404.130 (2016)”. A few months later, that, again per The Bluebook, would become “20 C.F.R. § 404.130 (2017)”. The Indigo Book, being limited in purpose to prying the citation system codified in The Bluebook out of its proprietary wrapper, takes precisely the same position. The ALWD Guide to Legal Citation (6th ed.) goes a step further and addresses the likelihood that the writer has relied on an online compilation more up-to-date than the once-a-year official edition. Acknowledging the e-CFR, it provides in Rule 18.1(c), that if one is relying on its version of the C.F.R. the citation should “indicate the exact date (Month Day, Year) through which the provision is current, and append its URL after the publication parenthetical.” If the writer has, instead, referred to a commercial service’s compilation, ALWD calls for the citation to take the form: “27 C.F.R. § 72.21 (Westlaw through Sept. 29, 2016)”. (The section in its example was last amended in 1995.) In the ordinary case, both are unnecessary.

C. How Federal Judges (and Lawyers Appearing before them) Cite the C.F.R.

With the exception of opinions of the U.S. Supreme Court do which include the year of the current volume in initial citations to the Code of Federal Regulations, the decisions of most federal judges cite its provisions generically. That is, so long as they are referring is to the language of a C.F.R. section currently in effect, they cite it without any indication of date or online source. See, for example, the citations in: Gorman v. Berryhill, No. 3:16-CV-05113 (W.D. Mo., Nov. 30, 2017); Trevizo v. Berryhill, 862 F. 3d 987 (9th Cir. 2017); and Cazun v. Attorney Gen., 856 F.3d 249 (3d Cir. 2017). Briefs filed by the U.S. Justice Department take the same approach.

D. The Publication Lag and Hoped-For Useful Life of Journal Articles May Legitimately Call for The Bluebook‘s or ALWD Guide‘s Approach

Generally, months pass between an author’s completion of a journal article and its eventual publication. Moreover, since publication delays are common, the date carried by the journal issue in which the article appears may or may not correspond to the actual date of its distribution. Finally, against the odds, the author may imagine the piece being read with care for years into the future. Arguably, these factors argue for attachment of an explicit statement of the “current as of date” to all cited statutory and regulatory code sections. At minimum their inclusion reminds an unknown, and perhaps distant, reader to check on whether subsequent amendments may have altered the force of the writer’s analysis.

In contrast, legal briefs and judicial opinions carry explicit dates of filing. So long as there is no indication to the contrary, those reasonably anchor an assumption that all citations to codified statutes and regulations they contain refer to the provisions in effect on that date.

How Should One Think about (and Cite) the U.S. Code?

December 4th, 2017

I. A Few Recent Changes to the United States Code (Virtual or Generic)

A. The Addition of a New Title

On September 1, 2017 the Office of the Law Revision Counsel, U.S. House of Representatives (OLRC), released a Title 34 of the U.S. Code. It contains no new law. All of Title 34’s provisions had been filed elsewhere in the Code, a fair number of them in the form of notes. The editors of the official code simply gathered the growing number of statutes dealing with “crime control and law enforcement” and organized them into this new location. The results are to be found at the Law Revision Counsel’s online edition.

http://uscode.house.gov/browse.xhtml

The new title is also available in the constantly updated online editions of the U.S. Code offered by LexisNexis, Westlaw, and Cornell’s Legal Information Institute (LII). In dramatic form this poses the question: How should one think about and cite to a provision of the U.S. Code or any of its state counterparts? Is it appropriate to use the new code architecture and cite a 2001 law authorizing the Justice Department to develop and support computer forensic laboratories as “34 U.S.C. § 30102”? (It was previously stashed in a note to 28 U.S.C. § 509.) If not now, when will it be?

B. The Addition of New or Amended Provisions

The same question is posed less starkly each time a new statute of general and permanent applicability becomes law. On August 23, 2017 the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, became law. It amended numerous sections of Title 38 of the Code, one of the 37 titles that Congress has enacted into positive law. Two of the amended provisions are subsections (e) and (f) of 38 U.S.C. § 5103A. Although enacted those changes do not take effect immediately. (That is to happen only “on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs ….”)

Five days earlier Pub. L. No. 115-50 amended Section 3 of the DNA Analysis Backlog Elimination Act of 2000, which had been codified by the Law Revision Counsel in Title 42, one of the non-positive law titles, as 42 U.C.C. § 14135a. With the establishment of Title 34, however, that section including the amendment moved to 34 U.S.C. § 40702.

These changes were swiftly incorporated by the Office of Law Revision Counsel into its online version of the Code. (See its pages for 38 U.S.C. § 5103A and 34 U.S.C. § 40702.)  Following standard practice, 38 U.S.C. § 5103A contains notice of the delayed effective date of the 2017 amendments in an appended note.  From the OLRC site the titles, as revised, were picked up and incorporated immediately into the federal statutory compilations maintained by the major online legal information providers. (See, e.g., the LII’s versions of  38 U.S.C. § 5103A and 34 U.S.C. § 40702.) The OLRC offers bulk downloads in a range of formats (XML, XHTML, PCC, and PDF) to facilitate this rapid republication.

II. Their Delayed Appearance in the United States Code (Physical)

The compilation maintained by the Office of the Law Revision Counsel (OLRC) and available online to both the general public and law publishers is the ultimate source for a set of books put out by the Government Publishing Office (GPO). Every six years the OLRC publishes and the GPO prints a fresh edition.

United States Code (2012 edition)

The next edition to appear will carry a 2018 date, but it will not be produced and delivered until well into 2019 and 2020. In between editions there are annual supplemental volumes. They cumulate all changes made up to their cutoff date. The changes noted above will be contained in Supplement V to the 2012 edition of the code likely to be available in late 2018. Volumes and the annual supplements are produced sequentially so that titles with lower numbers and supplements to them appear in print sooner than, say, Titles 34, 38, or 42. As the print volumes are produced an electronic replica in PDF is placed, with authentication at the GPO website, in its FDsys (Federal Digital System) collection. Unlike their print counterparts, these files do not separate statutory text and notes into core volume and cumulative supplement. When the 2017 version of Title 38 appears at the FDsys site in late 2018 it will contain the full title as amended through the beginning of the year.


Authentication of Supplement IV Containing Title 38

III. Ought One to Cite to the Virtual or Generic United States Code?

A. What Do the Leading Manuals Say?

Citation manuals also appear in periodic editions.  This fall brought a new, sixth edition of the ALWD Guide to Legal Citation. (More on this Bluebook competitor in a later post). Tracking the fifth edition it states in Rule 14.1:

Federal statutes are cited either to the official print version of the United States Code (preferred, although it is rarely up to date …) or to the authenticated online version of the code in the Government Publishing Office’s Federal Digital System (“FDsys”)…. Cite an authenticated federal statute in FDsys the same way you cite it in print.

Like The Bluebook, which it essentially mimics on this point and most others, the ALWD guide appears to forbid citation to any of the revised portions of the Code noted above in the format “__ U.S.C. § __” until they have been published by the government in print or the authenticated digital replica. In the interim, for new law, citations to print session laws (or presumably their digital counterparts) are preferred. For a revised packaging of prior law, such as the new Title 34, guidance is less clear. Neither manual has adjusted to the availability of a continuously updated version of the code directly from the public body responsible for its publication.

B. What According to Prevailing Professional Usage Does a “U.S.C.” Citation Represent?

Some time ago, in discussing whether The Bluebook‘s copyright extended to the system of citation it codified, I cited 17 U.S.C. § 102(b), which reads:

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.

Does the citation of “17 U.S.C. § 102(b)” as the source for that passage represent that I reviewed its text in the GPO print publication or on FDsys? Both the Bluebook and ALWD Guide appear to say so.  (Had I used Westlaw as my source they would have the cite read “17 U.S.C.A. § 102(b)”.) My intention and, I would argue, the widely understood meaning of the form of my citation was only to identify the location of the quoted passage in any of the many reliable, up-to-date versions of the Code.

In addition to their attachment to print the two academic citation manuals reflect the continuing strong influence of Thomson Reuters and Reed Elsevier. Both manuals allow citation to those companies branded versions of the United States Code (U.S.C.A. and U.S.C.S.) as a fallback. The ALWD Guide to Legal Citation explicitly places them ahead of named commercial alternatives (including Bloomberg Law and Fastcase) and ignores the leading noncommercial source (LII). On what grounds? Revealingly neither mentions the OLRC’s online version of the code on which all others are based.

C. The Use of “U.S.C.” as a Generic Reference

Long ago when the only statutory compilations were those published in print, alternatives could be counted on a few fingers, and publication lag was substantial and varied among them, a requirement that a statutory citation reveal which version the writer had relied upon was defensible. No longer. In 2017 “U.S.C.” amounts to a generic designation, almost certainly employed by the reader to find the cited provision not in the GPO book but in some online database, very likely one different from that used by the writer. Federal judges whose opinions reveal their reliance on Westlaw by the prevalence of “WL” citations to “unpublished” cases cite the Code generically.

D. Brand Reinforcement as a Vestigial Counterforce

A subscriber to Bloomberg Law who takes advantage of its “copy with citation” feature receives that citation in generic format, “__ U.S.C. § __”.  However, a Westlaw subscriber using that service’s “Copy with Reference” feature is furnished a “U.S.C.A.” citation, and “advanced copy” on Lexis cites the same section to “USCS”. Because of such “citation assistance” and the durability of citation habits forged in the print era, citations to those two commercial compilations still appear occasionally in briefs and judicial opinions. Rarely are they used selectively, i.e., limited to provisions not yet available in the print United States Code. Typically, a judge or lawyer who cites to U.S.C.A. or USCS today does so throughout a brief or opinion. See, e.g., HSP v. JK, 223 N.J. 196 (2015), Bank of America, NA v. Camire, 2017 ME 20.

IV. Indicating Chronological Version as Distinguished from Source

When Congress has injected new law into a positive law title of the Code or passed new law that the Office of Law Revision Counsel has compiled into one of the non-positive law titles and when the OLRC has gathered existing statutes into a new title, it is critical that a U.S. Code citation not generate confusion. Does it refer to the Code as it stood before or after the change? In most lawyering settings, a citation to the Code carries the implicit representation that the writer is referring to the Code as it stood when the brief was submitted or the opinion written. (Journal articles, the prime concern of The Bluebook and ALWD Guide to Legal Citation, carry no such clear “as of” date and therefore pose a greater risk of version uncertainty.) A citation to 34 U.S.C. § 30102 will frustrate any reader looking for the section in the GPO’s print or online version of the code. On the other hand, when entered in Google or any of the major online databases it will yield results. The exceedingly cautious writer can add an explanatory parenthical such as “(Prior to the 2017 codification of Title 34 this section appeared as a note to 28 U.S.C. § 509.)”

An Exclusive Right to Publish the California Style Manual?

August 31st, 2017

I. The California Style Manual (5th ed.)

A number of states that edit and publish (or contract for) their own case reports have style manuals.  Most are aimed principally at the state’s judges together with the law clerks and reporters of decisions who assist them in preparing and editing opinions.  Unless court rules say otherwise such manuals are likely, as well, to influence the citation format of memoranda and briefs submitted to courts in the state.  Usually, however, they are not prescriptive.  The California Style Manual is unusual, if not unique, in going beyond being a mere source of influence.  It provides one of two citation schemes that  are acceptable in attorney submissions.  Rule 1.200 of the California Rules of Court requires that any lawyer filing a document in state court conform its citations to the California Style Manual or to The Bluebook.  It also requires that whichever is employed must be used consistently throughout.

The first edition of the California manual appeared in 1942, prepared by the then Reporter of Decisions, Bernard Witkin, a towering figure in the chronicling of California law.  Subsequent revisions have all been overseen by Witkin’s successors, aided by court staff and employees of the official report publisher.  The fourth edition, prepared by Edward Jessen, who retired as Reporter of Decisions in 2014 after 25 years, was published in 2000.  Copies, produced under license from the copyright holder, the California Supreme Court, are available in print from Thomson Reuters for $16.95.

They can also be downloaded in PDF from the Sixth District Appellate Program (SDAP) for free.

This June the contract for a fifth edition was signed with LexisNexis.  The transaction was not completed as an independent agreement but buried as one paragraph among many in a contract for publication of the state’s official reports for the next two to seven years.  (By statute that contract may not exceed seven years.  Cal. Gov’t Code 68904.  As the underlying contract is structured, its term is for two years, followed by two options to extend that for a total of five more.)

Embedded within that two-year contract is the following provision:

The Contractor must assist the Reporter of Decisions in creation and production of the California Style Manual, Fifth Edition. Such assistance shall consist of all editorial, typographic, layout, and graphic design necessary to the production of an independent, separate print product. The California Style Manual, Fifth Edition, must be produced in both hard copy printed and electronic format. The format chosen must be able to support supplements and updates. Copyright to the California Style Manual, Fifth Edition, will be held by the State of California but the Contractor will be granted an exclusive perpetual license to publish and sell the California Style Manual, Fifth Edition, at the price agreed upon and in accordance with the price adjustment provisions set forth in this Agreement. The Contractor has discretion to propose editorial enhancements to or format for the California Style Manual, Fifth Edition, not specified above. The Contractor must print and make available for sale a sufficient number of copies of the California Style Manual, Fifth Edition, to supply all demands for 20 years from the date of publication. Volumes supplied pursuant to this requirement must be sold at prices no greater than the current applicable price authorized under the contract for publication of bound volumes of the Official Reports in effect at that time. [Emphasis added. PWM]

Note the word “perpetual.”  It did not appear in the RFP.  That strongly suggests that this term resulted from subsequent negotiation by the successful bidder, LexisNexis.  The result is an uncomfortably long-term relationship between the California judiciary and the incumbent publisher of the state’s appellate decisions.  On its face the license exceeds the maximum duration set out in the statute authorizing the contract in which it is embedded.  Thomson Reuters, printer and seller of the current version of the California Style Manual in print (the fourth edition), appears to hold no such right.  No other state has granted its publisher comparable control over the future format of judicial opinions and attorney submissions or effectively barred itself from distributing its own style manual, internally and to the public for free.

II. Other States’ Style and Citation Guides

Michigan’s Office of the Reporter of Decisions  prepares and follows the Michigan Appellate Opinion Manual.  It also offers the manual “as an aid to practitioners in the preparation of documents for submission to the courts.”   Use by lawyers is not mandatory, but it is available to them free, online.  Its copyright notice names the Supreme Court of Michigan.  The New York Law Reporting Bureau also distributes its Official Reports Style Manual online.  Updated periodically, it is available in both HTML and PDF formats, copyright New York Unified Court System.  The Oregon Judicial Department publishes the Oregon Appellate Courts Style Manual online and doesn’t bother to assert copyright.  The Washington Style Sheet, put out and placed online by that state’s office of the reporter of decisions, is treated similarly.

Court rules in a number of states specify how their own primary legal sources are to be cited.  No exclusive publication rights in these rules are granted commercial parties.  Examples include Fla. R. App. P. 9.800,  Ind. R. App. P. 22, and S.C. R. App. Pract. R. 268.

III. What Rights in the New Edition Are Left with the State?

Under the Copyright Act, an exclusive licensee can sue for infringement.  Indeed, the licensee can sue the copyright owner/licensor for infringing upon the granted rights.  See. e.g.Kepner-Tregoe, Inc. v. Vroom, 186 F.3d 283 (2d Cir. 1999).  There seems little doubt that under the current act a “perpetual license” extends for the full duration of the underlying copyright.  See, e.g., P.C. Films Corp. v. MGM/UA Home Video Inc., 138 F.3d 45 (2d Cir. 1998).  That is not “forever” but with a “work for hire” of this sort the copyright term is 95 years from the date of publication.  17 U.S. Code § 302(c).  In this instance, the right is coupled with a limitation on sale price and the obligation to produce the work in sufficient quantity to meet demand over the course of twenty years.  All of that puts enormous stress on the exact boundaries of the license granted LexisNexis, namely, the right “to publish and sell the California Style Manual, Fifth Edition.”  Confounding the puzzle is the requirement that the work’s “format … be able to support supplements and updates” and the explicit reference to both print and electronic versions.  Combine those with the enough-copies-for-20-years provision and it seems unlikely that a sixth edition will provide release from this unusual commitment any time soon.

Just as The Bluebook‘s copyright does not give its holders the exclusive right to communicate the system of citation it describes, others will be free to produce guides, software, and teaching materials that embody the system of citation and elements of style to be contained in this forthcoming edition of the California Style Manual.  Since the license does not convey the right to make derivative works, it should not prevent the state from producing a sixth edition when it decides to.  See Kennedy v. National Juvenile Detention Ass’n, 187 F.3d 690 (7th Cir. 1999).  But from publication of the fifth edition until the appearance of a sixth, the California judiciary’s ability to do as other states do – namely, disseminate its style manual online within state government and to the public, without charge – has been surrendered.

IV. Why?

Several provisions in the underlying official reports contract gesture toward the possibility of California’s appellate courts following those of other states that have shifted from print to official digital publication.  Most important among them is the limitation of the state’s commitment to two years.

On the other hand, the state’s breaking free of a model of producing official print reports using a commercial publisher would deny the incumbent the competitive advantage of privileged access to official, final, citable, versions of California case law in digital format.  There are many reasons why it is time for California to make that move.  However, it appears that LexisNexis values its privileged access sufficiently to commit significant editorial services and to provide the state’s appellate judges with complimentary copies of the reports, all at no charge.  Provisions in the RFP that would have reduced the contract’s value to LexisNexis (such as inclusion of page numbers and delivery of final versions of opinions in machine-readable form at the required public access site) drew no meaningful commitment in its proposal.

Having an exclusive publication and sale right to a resource critical to the editorial work on California’s opinions, one that runs for the maximum period to which the new official report contract can be extended and beyond would appear to reduce the risk to the publisher of California’s breaking out of the print-era paradigm during the next seven years.

V. Under What Authority?

On December 16, 2016, the California Judicial Council released the eighth edition of its Trial Court Financial Policies and Procedures Manual.  It is distributed online, without charge, and carries no copyright notice.  Less than a year later, the council released the most recent revision of the Judicial Branch Contracting Manual.  It does contains  copyright notice, although no copyright has been registered.

The statute authorizing the “official reports” contract is very clear about its maximum duration.  This is a contract to “publish and sell the official reports, for a period of not less than two nor more than seven years.”  Cal. Gov’t Code § 68904.  It is to be let to the publisher who will do so “on the terms most advantageous to the state and to the public.”  Id.  Surely, though, that “most advantageous” language does not provide boundless authority to grant the publisher perpetual exclusive rights to publish and sell other judicial branch manuals and guides, like those noted above.  Some might even question whether it authorizes the sort of value exchange embedded in the current official reports agreement since the statute is grounded upon a constitutional provision mandating that the judiciary’s opinions “shall be available for publication by any person.”  Cal. Constitution Article VI, Section 14.  Does it authorize the granting of a perpetual exclusive license to publish the California Style Manual?  The matter would seem debatable.

 

 

One U.S. District Court’s Lonely Gesture Toward Open Access and Medium-Neutral Citation

January 24th, 2017

I. Introduction

As 2017 opens one U.S. District Court – that for the District of New Hampshire – begins its eighteenth year as an isolated (and incomplete) model of how all federal courts might handle opinion distribution.  (Hat tip to Andrew P. Thornton of Little Rock for bringing its record to my attention.)

II. The Simple Steps this One Court Has Taken

In January 2000, the U.S. District Court in New Hampshire started identifying some of its decisions by year, numbering them sequentially.  It designated Silva v. Nat’l Telewire Corp., No.  99-219-JD, decided on January 3, for example, as “Opinion No. 2000 DNH 001“.  Panza v. Grappone Cos., No. 99-221-M, decided on October 20 of the same year, is “Opinion No. 2000 DNH 224“.  Immediately, upon release, the decision texts, carrying these identifiers, were placed in a court-hosted, searchable database.

The following year the court adopted a local “citation format” rule.  That rule directs those citing decisions released after January 1, 2000 and published at the court site to do so “using the four-digit year in which the opinion is issued, the letters ‘DNH,’ [and] the three-digit opinion number located below the docket number on the right side of the case caption ….”  For decisions published in “the Federal Supplement, the Federal Rules Service, or the Federal Rules Decisions” the rule authorizes volume and page number citations to those print reporters as an alternative.

This took place well before the E-Government Act of 2002 called upon federal courts to provide web-access to “all written opinions.”  While this island of non-print-based citation has escaped the notice of The Bluebook, the 2001 local rule remains in effect and the practice continues.  McFadden v. Walmart, 2017 DNH 002, was decided on January 5 of this year.  The district’s judges themselves do still, on occasion, cite using opinion numbers.  See, e.g., Hersey v. Colvin, 2016 DNH 203, 10 (citing  Corson v. Soc. Sec’y Admin., Comm’r, 2013 DNH 144, 24–25).  So do  attorneys.  The New Hampshire Bar Association publishes a monthly “US District Court Decision Listing” that contains summaries of selected decisions of the prior month.  The decisions covered are cited by their “medium neutral” or “public domain” opinion numbers.

Since the court-attached opinion numbers appear within the texts they identify, researchers need no other citation to retrieve a decision from any electronic source.  They do the job on Bloomberg Law, Casetext, Google Scholar, Lexis Advance, Ravel Law, and WestlawNext.  They also work with the GPO’s FDsys case law repository (about which more below).  For the same reason these sources also provide the opinion number required for a conforming District of New Hampshire citation.

III. Critical Respects in Which the Model Falls Short

A. The Use of Pagination as the Means for Pinpoint Citation

Although nearly all legal research services retain the opinion numbers attached by the U.S. District Court for New Hampshire, only Casetext, Fdsys, and the court’s own database preserve the location of the page breaks in the original version of a decision that the court’s rule directs be used for pinpoint citations. Arkansas and Louisiana, two state systems that, similarly, adopted neutral citation but sought to avoid paragraph numbering by specifying the pagination in a court-released pdf file as the basis for pinpoint references, have suffered the same fate in research services that, like Google Scholar, base their texts for many jurisdictions on the versions published in the Thomson Reuters National Reporter System.  Not only are paragraph numbers more precise and more tightly connected to the logical structure of a cited document than pagination, they travel far more reliably with the portions of text they denote into the full range of data services used by those doing legal research.

B. A Failure to Include All Substantive Opinions (Including Magistrates’ Reports and Recommendations)

Not all decisions rendered by District of New Hampshire judges receive court-applied opinion numbers, only selected ones.  In compliance with the E-Government Act of 2002 all written opinions of the court, including reports and recommendations by magistrate judges, are made available without charge through the PACER system, where they can be gathered by the online services.  A non-trivial number of those opinions – ten percent or more – have not been given opinion numbers nor placed in the court’s searchable database.  That is particularly true with categories of cases such as inmate suits and Social Security appeals that are routinely resolved by a magistrate’s report and recommendation, followed by a short judicial order adopting it.  As a result, a significant body of district case law cannot be found in the court’s searchable database nor cited by means of opinion numbers.  Because of this incompleteness, responsible case law research cannot be carried out using the court’s database.  Thoroughness requires use of one of the comprehensive research services.   And that leads to citations by the court of its own prior decisions that employ Westlaw or Lexis proprietary cites rather than, or in parallel with, the court’s public domain, medium neutral scheme.

C. Inherent Limits on a Single-District Citation System within a Federal Court with 93 Other Districts

The situation in the District of New Hampshire is categorically different from that in the numerous states that have adopted similar plans of electronic publication and court-applied citation.  Matters litigated in state court can often be argued and decided solely on the basis of that state’s own case law.  By contrast, rarely if ever can those representing parties to a matter before the U.S. District Court for the District of New Hampshire or the judge handling the case disregard decisions from the First Circuit and other U.S. Courts of Appeals and decisions by other district courts as well.  For the district judge that calls for use of one of the two commercial systems available to the federal judiciary; for attorneys, use of those same systems or some comparably comprehensive alternative.  The court’s less-than-complete database of decisions may, conceivably, be a useful place to start research but never a place to finish it.  Thorough research and consistent citations of relevant decisions lead almost inexorably to the use of one or more of the proprietary systems.  With this district’s judges the dominant system is Westlaw.  Their pinpoint cites to unpublished decisions, including those in citations to cases that have court-applied opinion numbers, overwhelmingly use Westlaw pagination instead of the page numbers contained in the court’s original version.  The citations to Mudge v. Bank of Am., N.A.Gasparik v. Fed. Nat’l Mortg. Ass’n, and Dionne v. Fed. Nat’l Mortg. Ass’n in LaFratta v. Select Portfolio Servicing, Inc., 2017 DNH 007, as released by the court, are examples.  LaFratta and other recent decisions reveal a declining use of the court’s opinion numbers and a growing practice of linking citations to authority of all kinds into Westlaw.

IV. The Sorry Fate of Other Single-Court Citation Schemes within the Federal Judiciary

A. The Sixth Circuit’s Ancient DOS-Based Naming Scheme

Since 1994 decisions of the U.S. Court of Appeals for the Sixth Circuit, both published and unpublished, have carried a “file name” identifier.  Designed to fit within the name space of the MS-DOS operating system of that era those identifiers consist of eight characters, followed by a period, followed by two more.  The file name of one unpublished decision released in January 2016 is “16a0051n.06”.  Miller v. Comm’r of Soc. Sec., 811 F.3d 825 (6th Cir. 2016) decided the same month is: “16a0020p.06”.  (The “n” and “p” indicate whether the decision is to be published or not.)  While Lexis retains these identifiers, they don’t follow opinions into volumes of F.3d or Westlaw.  As seems gradually to be happening with the District of New Hampshire opinion numbers, the Sixth Circuit file names have become useless data.

B. The Relatively Brief Run of Neutral Citation in the District of South Dakota

Effective January 1, 1996, the Supreme Court of South Dakota began attaching medium neutral citations and paragraph numbers to its opinions.  The practice continues; the court’s rules of appellate procedure still require use of this public domain citation system.  Later in that year, by local rule the U.S. District Court for the District of South Dakota laid down the same steps.  Even at the time not all of the district’s judges bought into the change.  With the appointment of a new chief judge in 1999 who was not an enthusiast, the system continued in the opinions of only one of three active district judges and a magistrate judge.  When the district judge in question took senior status in 2008, all trace of the scheme disappeared.

V. Missed Opportunities to Implement Non-Print-Based, Non-Proprietary Citation across the Federal Courts

A. The Judicial Conference Response to the 1996 ABA Resolution

In 1996 the American Bar Association House of Delegates recommended that all U.S. jurisdictions “adopt a system for official citation to case reports that is equally effective for printed case reports and for case reports electronically published.”  The resolution proceeded to spell out the key elements of such a system: 1) attachment of identifiers to all decisions, consisting of the year, the court, and a sequential decision number, 2) insertion of paragraph numbers, and 3) adoption of court rules requiring that citations employ these elements.  In response the Automation Committee of the Judicial Conference of the United States and the Administrative Office of the Courts simply surveyed federal judges and clerks regarding the ABA citation recommendation.  Without asking the Federal Judicial Center for a study or furnishing rationale or context, it simply asked all these individual actors whether they favored the steps.  Overwhelmingly they expressed satisfaction with the status quo, hostility to paragraph numbering, and puzzlement over the grounds for change.  The recommendation died in committee and has not since been revived.

B. Terms of the E-Government Act’s Mandate

The E-Government Act of 2002, in a section immediately prior to the one addressing the federal courts,  directed the creation of and authorized appropriations for an integrated online information system covering all federal administrative agencies.  That portal was to be designed to allow public access to agency material “integrated according to function or topic rather than separated according to the boundaries of agency jurisdiction.”  In contrast, reflecting the highly decentralized administrative structure of the federal courts, the act’s directive that all federal court opinions be made accessible online was directed at the chief judge or justice of each and every court in the federal system.  A more coordinated approach might have drawn attention to the citation issue.

C. Addition of Rule 32.1 to the Federal Rules of Appellate Procedure

Similarly, the reform movement that led to the addition of Rule 32.1 of the Federal Rules of Appellate Procedure in 2006 might well have focused attention on how the “unpublished” decisions of the U.S. Courts of Appeals, which by the terms of the new rule became citable, could or should be cited.  Its sponsor, the Advisory Committee on the Federal Rules of Appellate Procedure, heard concerns about how those for whom Lexis and Westlaw were beyond reach would access to this large body of case law.  Ignoring the citation challenge the committee pointed to the E-Government Act’s mandate as addressing the problem.

The strategic appearance of the West Federal Appendix in 2001, which furnished the means for proprietary volume and page number citation for these “unpublished” decisions to members of the federal judiciary (all of whom have access to Westlaw) almost certainly encouraged this blindness.

D. Implementation of the Federal CM/ECF System, its PACER overlay, and the Fdsys Decision Archive

Federal court electronic case management systems trace all the way back to applications developed by the Federal Judicial Center in the late 1960s.  Those established the fundamental structural model that persists to this day: central development of a set of electronic tools, with most decisions about whether, when, or how to use them left to the individual courts.  It is probably significant that, having its own administrative and technical support, the U.S. Supreme Court has taken no part in promoting or coordinating technology adoption in the subordinate federal courts.  In 1990 Congress catalyzed the opening of existing court-located case and document management systems for remote electronic access.  At the time that meant dial-up.  The move to electronic filing began in 1995.  At around the same time the Administrative Office of the U.S. Courts began work on a national party and case number index to the electronic records of the federal courts that had implemented its CM/ECF system.  For many federal courts this Public Access to Court Electronic Records service (PACER) subsequently became the mechanism for compliance with the E-Government Act’s mandate.  While access to other documents through PACER carries a fee, all documents tagged by the deciding court as “opinions” can be retrieved without charge.  However, PACER provides no full-text index of those opinions.  They can only be tracked down using docket number, party names, court, and case type.

As filed in a court’s CM/ECF system an opinion is stamped with identifiers that consist solely of case docket number, filing date, and the document’s place in the sequence of filings in the matter – “Case 1:15-cv-00200-LM Document 5 Filed 11/17/15” for example.  A uniform federal court citation system could have been appended to this system, either initially or in the “next generation” version now being rolled out.  It was not.

In recent years the Government Printing Office Federal Digital System (FDsys) has begun drawing opinions from participating federal courts and loading them into a text-searchable database.  Following a pilot phase, the Judicial Conference of the United States authorized national implementation of this inter-branch cooperative venture in September 2012.  Over four years later, it remains seriously incomplete in scope; only 49 out of 94 districts courts are included.  Furthermore, among included courts, the chronological depth and currency of the data vary considerably.  And while GPO authenticates each PDF file it receives from a participating court system and associates a useful array of metadata with it, it has not, as it could, attached an identifier that a lawyer or judge would recognize as a citation.  To date, this is simply another more missed opportunity.

At the beginning of 2017, the prospects of a system-wide citation scheme modeled on that launched in New Hampshire at the turn of the century appear dim.

VI. How Should Decisions of the U.S. District Court for the District of New Hampshire Be Cited?

As noted above, this one district court still attaches medium-neutral citations to many, although not all, of its decisions.  Whether one obtains such a decision from the court’s database or a commercial source, its opinion number is available and, when included in a citation, it furnishes a highly efficient retrieval identifier.  Decisions that have been given a place in F. Supp. or F.R.D. can be retrieved by volume and page number from nearly all research services.  Adding the opinion number as a parallel adds negligible value.  For “unpublished decisions” whether or not, given an opinion number, Westlaw or Lexis citations may suffice for the court, its judges having access to both.  But limiting a citation to one or the other or even both in parallel may leave the opposing party and others who might rely on Google Scholar or Casetext or Ravel without an efficient retrieval hook.  Pincites pose a further problem.  Lexis includes Westlaw cites for unpublished cases but not Westlaw pagination.  Westlaw ignores both Lexis cites and Lexis pagination.

Useful guidance and models come from the court’s own decisions.  In Bersaw v. Northland Group Inc., 2015 DNH 050, Judge Joseph LaPlante offered this advice: “[I] would recommend that, with respect to unpublished cases that appear solely on electronic databases such as Westlaw or Lexis, counsel provide as much alternative identifying information (e.g., case number, issuing court, and opinion date) as possible.”  The judge, himself, practices what he recommends.  A citation appearing in Locke v. Colvin, furnishes a fully fleshed out example of this approach.  It reads:

Brindley v. Colvin, No. 14-cv-548-PB, 2016 U.S. Dist. LEXIS 10757, 2016 WL 355477, at *5 (D.N.H. Jan. 29, 2016) (quoting Ortiz, 890 F.2d at 528) (remanding where ALJ neither called vocational expert nor explained why reliance upon the Grid was appropriate, but “merely stated, without explanation or citation to record evidence, that [the claimant’s] non-exertional limitations have little or no effect on the occupational base of unskilled light work”) (internal quotation marks and citation to the record omitted).

Four aspects of the example warrant notice:

  • While Brindley v. Colvin has an opinion number (2016 DNH 021) it is not included.
  • Westlaw pagination rather than pagination from the version held in the court’s database provides the pinpoint reference.
  • The addition of docket or case number and full date, as counseled by Judge LaPlante, make it possible to retrieve the Brindley decision from sources that hold it but neither its Westlaw or Lexis citation, including the court’s own database.
  • The parenthetical notes provide a clear path to the cited portion of Brindley for any reader who is inspecting that decision on a system in which having the Westlaw star page number is useless.

2017 – The Year to Free California’s Case Law “for Publication by Any Person”

January 9th, 2017

I. Introduction

Alone among California’s branches of government, the state’s appellate courts remain stuck in a pattern of legal publication designed around books.  Other states now furnish unrestricted digital access to final, official, citable versions of their judicial precedent.  California does not.  The current “official reports” publication contract with LexisNexis runs until June 2017.  At that point the state’s judicial branch could do the same.  There are compelling reasons why it should.

II. The Constitutional, Statutory, and Contractual Framework

Every year California’s appellate courts hand down roughly one thousand decisions that count as legal precedent.  Those opinions, containing interpretations of constitutions (federal and state), statutes, and regulations, as well as rulings on points of uncodified law, are binding on the courts, governmental agencies, businesses, and citizens of the state.  To a degree true of no other state’s jurisprudence they also influence decisions of the nation’s other courts.

Recognizing the critical importance of public access to this body of law, Article VI, Section 14 of the California Constitution states:

The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person.

California’s legislature has discharged that constitutional mandate by establishing the position of “reporter of decisions.”  Section 68900 of the California Government Code directs the Supreme Court to appoint such an official and prescribe his or her duties.  Adjacent sections require publication of the official reports under the supervision of the Supreme Court, those reports to contain “[s]uch opinions of the Supreme Court, of the courts of appeal, and of the appellate divisions of the superior courts as the Supreme Court may deem expedient” and to be accomplished through a contract of two to seven years duration.

The current contract ends in June 2017.  It has been extended to the full 7 years allowed by statute.  In anticipation of the next contract, the state’s new reporter of decisions, Lawrence Striley, must begin work with the principal stakeholders to craft a framework for the request for proposals (RFP) to be issued soon.  (By statute the contract is “entered into on behalf of the state by the Chief Justice of California, the Secretary of State, the Attorney General, the President of the State Bar, and the Reporter of Decisions.”  Cal. Gov’t Code § 68903.)  For important reasons that framework ought to be quite different from the one embodied in the 2010 RFP.  Time is ripe for a fundamental change in how this important public function is carried out.

III. A Vast Discrepancy between California’s Current Official Reports Model and How Case Law Is Disseminated and Researched in 2017

During the era of print law reports, judicial opinions made their way slowly to their final archival form – a bound volume containing large numbers of them.  Precedential decisions were first released as “slip opinions,” which had only limited circulation beyond the parties.  Following initial release, a reporter of decisions and staff subjected all “slip opinions” destined for publication to thorough editorial review.  This post-release editorial work, conducted under court oversight, included the addition of parallel citations, the checking of quotations and citations for accuracy and proper format, careful proofreading and copy editing of decision texts.  During this period the reporter’s office also added summaries, headnotes, and headings to individual decisions as well as the indices and other finding aids that organized the contents of completed volumes.  These substantial editorial duties required time.  However, so long as nearly all effective distribution of decisions took place in print, delay was a natural part of the process.  Decisions first had to collect in sufficient numbers to be issued in a temporary paperbound volume.  Only upon their release in that “advance pamphlet” form could they carry the volume and page numbers by which they would henceforth be cited and their future influence tracked by means of a citator.  Most of the reporter’s editorial work on decisions took place in the month or months prior to “advance sheet” distribution, but the subsequent accumulation of the pages needed to fill a bound volume provided additional time for further editorial correction and revision.  In California that print-based work flow still prevails and is embodied in the official reports contract.  It takes over a month for a decision of the California Supreme Court to acquire the volume and page numbers by which it and its key passages will need to be cited, together with the accompanying editorial revisions and corrections contained in its “advance pamphlet” publication.  The bound volumes that follow accumulate a full four months of opinions.

Yet the print volumes, nominally the subject of the current official reports contract, no longer provide the principal pathway to the state’s precedent. From start to finish, the vast majority of lawyers, judges, other public officials, and members of the general public doing case law research turn to electronic sources.  Each year fewer and fewer libraries buy the bound volumes that hold the final and official text of California’s appellate courts.

man doing legal research on computer    

A second and related change has taken place.  During the prior century those who wished to do California case law research had a choice between two competing sources: 1) the official reports produced under supervision of the reporter of decisions; and 2) a set of commercial reports derived from them sold by the West Publishing Company.  Where once there were two, there are now many.  The digitization of law has been accompanied by a proliferation of case law research offerings.  The “official reports” service maintained by the holder of the current contract (LexisNexis) competes with Westlaw, Bloomberg Law, Casemaker, and Fastcase, plus a spectrum of free services led by Google Scholar.

   

Recent start-ups, most of them based in California, continue to add to the list.

  

According to the most recent ABA Legal Technology Survey, LexisNexis is principally relied upon by fewer than one in three U.S. lawyers.  A direct consequence of that limited reach is that the contracted for summaries, headnotes, and headings added to California decisions under the supervision of the reporter’s office are not seen, let alone used, by most researchers of California law.  A further and more disturbing consequence is that the final, citable versions of decisions produced under the current publication contract are not “prompt[ly] … available for publication by any person.”  Concededly, the Judicial Branch website does provide prompt access to the original “slip opinions,” but these lack the editorial revisions that occur later during the publication process and also, of at least equal importance, they lack the volume and page numbers by which specific holdings of those cases must be cited in any subsequent legal proceeding.  While the LexisNexis contract requires publication of the official reports in electronic form, it does so on terms that preclude their being a data source for publication by others.  The same is true of the “California Official Reports Public Access Web site” maintained by LexisNexis for the Judicial Branch.  Users are instructed that the site is for personal and not commercial use.

Moreover, the decisions it offers have been stripped of the pagination that any professional user or other publisher would require.

In sum, any firm other than the holder of the present official reports contract, must choose between a pair of unsatisfactory approaches:

  1. offering preliminary “slip opinion” versions, while obtaining and inserting volume and page numbers in them drawn from the official print edition once available or
  2. re-digitizing the final print versions in their entirety.

It is not surprising that the California case law collections of several online services exhibit significant shortcomings.

IV. The Example Set by California’s Other Branches of Government

From the early days of the Internet, California has published its constitution and codes online – at a public site that allowed citizens, legal professionals, and businesses to search for pertinent provisions or retrieve sections to which they had been referred by others.  Commercial publishers and non-profit groups have been free to download up-to-date digital copies for republication in print or electronic format.  Through enactment of the Uniform Electronic Legal Material Act (UELMA), Cal. Gov’t Code §§ 10290-10300, the California Legislature has taken the further steps of designating the electronic version of that core component of state law “official” and providing for its online publication in an authenticated form.

Since 1998 California’s Office of Administrative Law has been under a mandate to “make available on the Internet, free of charge, the full text of the California Code of Regulations” along with “a list of, and a link to the full text of, each regulation filed with the Secretary of State.” Cal. Gov’t Code § 11344.

V. Models of Digital Case Law Publication upon which California Can Draw

Two decades ago the American Bar Association recommended that the nation’s courts adopt a public domain citation system “equally effective for printed case reports and for case reports electronically published on computer disks or network services.”  It proceeded to lay out the key components of such a citation system, one that would not require waiting for a decision’s publication in a printed volume but would instead enable courts to attach all necessary citation information to decisions at the point of release.  By the end of 2016 nearly a third of the states had adopted some variant of this approach.  A fairly recent example is Illinois, a state in which the statutory framework for decision publication and the number of published decisions are quite similar to California’s.  In 2011 the Illinois Supreme Court ended official print publication of that state’s appellate decisions.  Simultaneously it designated the versions placed at the court web site “official” and adopted a system of non-print-dependent citation.  Those electronic documents, like California’s statutes, are digitally authenticated.  Arkansas, Nebraska, New Mexico, Ohio, and Oklahoma provide further examples on which California could draw.

VI. No Small Challenge, but Substantial Potential Gains

As is true in so many other sectors, the principal challenge for the Judicial Branch of going digital lies not in the technology.  The website which now provides access to California “slip opinions” could be used, just as well, to offer their final official versions. Meeting concerns about data integrity by providing digital authentication should not be a significant problem as the sites of the State Legislature and Illinois reporter of decisions (along with those of several other state court systems) demonstrate.

The truly difficult task in converting to electronic publication is the redesign of an established workflow, staffing pattern, and contractual framework.  The reporter’s office has a small workforce.  Speeding up and altering the editorial process would not only have implications for its deployment.  Very likely the change would also affect the appellate courts whose decisions feed into that office.  Without question, it would require a quite different publication contract.  Under the terms and conditions executed in 2010 the state receives books; the final digital files remain in the publisher’s possession and control, embedded in its online system.

Offsetting the inescapable burdens of reform are likely cost savings and public gains.  Much of the effort of the reporter’s staff and contractor is no longer justified.  In the current information environment, the production of copyrighted summaries, headnotes, and classification headings almost certainly falls in this category.  So do the tables and indices created for each volume.  The reporter’s addition of parallel case citations is another historic practice of dubious continuing value.  No doubt there are more.

Long-term public benefits of a more far reaching kind argue for the change.  State and local units of government are major purchasers of legal information.  California has a system of county law libraries for the very purpose of supporting the legal research needs of public officials, the legal profession, and the general public.  Recent initiatives of the judiciary, legal service organizations, and the bar to improve access to justice all depend ultimately on timely, accurate, and economic distribution of the state’s judicial precedent.  Yet timeliness, accuracy, and economy are all compromised by a print-based contractual relationship that gives a single publisher direct access to post-release editorial revisions, sole responsibility for establishing how individual decisions will be cited, and the exclusive right to sell the official reports, in both print and electronic form.

Realizing the benefits of switching to official digital publication will require serious work.  With the current contractual arrangements ending in June 2017, the time to begin that work is now.

One Journal’s Defection from The Bluebook – Its Reasons and 6-Page Replacement

October 11th, 2016

Past posts have noted many points of divergence between the citation norms manifest in most judicial and lawyer writing and The Bluebook‘s dictates. They include such matters as case name abbreviations, the identification of a writer’s online source for cited primary authority, the format and content of treatise citations, and inclusion of a currency date in citations to statutes or regulations. The Bluebook‘s continued reign over law journal commentary and programs of instruction on professional writing in U.S. law schools has largely been taken for granted. Its dominance within the legal academy is undeniable.

Ten years ago Professor Ilya Somin of George Mason explained that dominance in terms of market failure. He argued that it was primarily a result of the decision’s being made by short-termers, student board members at a time they no longer bear the cost of compliance and who, having previously mastered The Bluebook‘s arcane rules, derive some satisfaction from imposing them on their successors as a form of hazing. In a companion Bluebook critique Professor Somin noted that The University of Chicago Law Review had, without evident loss of quality or prestige, employed a simpler and more rational citation scheme ever since 1986.

maroonbook

Today that journal still follows its own citation guide, the “Maroonbook.” The University of Chicago manual is not a rule-for-every-situation guide. It aims, instead, to establish a framework for citation, in which general principles of sufficiency, clarity, consistency, and simplicity operate. In length it runs to 85 pages compared to The Bluebook‘s 560.

Now, in 2016, comes another law journal breakaway with an even more radical rejection of Bluebook rules and specificity. The citation guide released this week by The Berkeley Journal of Gender, Law & Justice consists of a mere six pages of principles and examples. The student editorial boards of other law school-based journals would do well to consider the reasons listed as propelling this change. The first cited by the Journal of Gender, Law & Justice is the barrier that Bluebook compliance places in front of both scholars from other disciplines and practicing lawyers, thereby privileging the work of a relatively small group of authors. Those the requirement favors, of course, are legal academics, who by virtue of background, resources (in the form of student assistants), or both can conform their references to Bluebook mandates. A second reason cited is the costly diversion of editorial time and effort away from attention to an article’s substance in order to scrutinize and perfect the format of its footnotes. Lastly, the editors express concern about the the difficulty for readers, particularly those situated outside the legal academy, posed by the Bluebook‘s terse encoding of journal names. (They employ “J. Mar. L. & Com.” as an example.)

bjglj

Will others likely follow? The process of article submission has moved online. Rarely, today, are articles prepared for and submitted to a single journal. Using services like Expresso and Scholastica most law faculty members submit their scholarly writing to multiple journals at once. The vast majority of those journals require citations of submitted manuscripts to be in Bluebook form. This adds a powerful network effect to the factors of market failure cited by Prof. Somin and the prestige and strength of The Bluebook brand. As sound a decision as The Berkeley Journal of Gender, Law & Justice has made, it seems unlikely to foreshadow a large scale exodus of journals through The Bluebook‘s force field.

Better Never than So Very Late?

September 22nd, 2016

The Supreme Court – Opening a New Term in Serious Arrears

As the U.S. Supreme Court begins a fresh October term, the lag between its release of decisions and their publication, the topic of a previous post, has grown to embarrassing length. Today, decisions do not appear with their volume and page number assignments until four and one half to five years after they have been handed down. That critical information is provided to those who require it only when decisions are printed and distributed in a paperback “Preliminary Print” edition. The Preliminary Print covering the period Oct. 3, 2011 through January 17, 2012 (565 U.S. – Part 1) was published just this year and received by the Cornell Law Library on August 3, 2016.

Other courts, federal and state, obliged to follow Supreme Court precedent are left to cope with this immense citation gap. United States v. Jones, decided on January 23, 2012, held that installing a GPS device on a vehicle in order to track the vehicle’s movements constitutes a search under the Fourth Amendment. The case has, as of this date, been referred to in at least 998 subsequent judicial opinions. None has been able to cite the case or its key passages using the official, public domain format: “___ U.S. ___”.

What Can Others Do When the Lead Horse Is So Slow?

Adopt a Similar Pace

A few states that still publish print law reports are themselves years behind, although none so egregiously as the nation’s highest court. The most recent bound volume of the Nevada Reports concludes at the end of 2011. The volume and page numbers for individual decisions, assigned in preliminary prints, are, however, available up through May 2013.

When the Nevada Supreme Court cites decisions of the U.S. Supreme Court for which the official citation is available it uses only that, no parallel references. An August 2016 Nevada case, McNamara v. State, illustrates the court’s preferred format:

[W]e also reject McNamara’s argument that the failure to submit the question of territorial jurisdiction to the jury violated his Sixth Amendment rights as articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000).

The Supreme Court’s citation lag forces at least temporary use of an unofficial, commercial source and citation scheme. The author of a 2013 Nevada Supreme Court decision, Holmes v. State, relying on a U.S. Supreme Court’s decision of the year before, cited it as follows:

This argument fails under Howes v. Fields, 565 U.S. __, __, 132 S. Ct. 1181, 1192-94 (2012), because the interrogation was not custodial ….

Neither this Nevada decision nor the cited Supreme Court decision, Howes, is yet out in a preliminary print. There is no reason to imagine that Nevada’s publication delay has been induced by that in the nation’s capital. Yet because the two are both so far behind the Nevada Supreme Court staff will, in all likelihood, be able to fill in the skeletal U.S. Reports reference and drop the parallel Supreme Court Reporter cite when Holmes v. State is readied for final publication.

Ignore and Keep Moving

Most U.S. courts publish their precedent in final form with a degree of promptness that precludes citation of recent Supreme Court decisions to U.S. Reports. That is especially true of jurisdictions that have shifted from print to official digital publication. Illinois appellate decisions move from preliminary to final version quite swiftly. The average elapsed time is less than two months. Furthermore, from the moment of release any court, lawyer, or commentator can cite to an Illinois Supreme Court decision in official form. That is because, at release, each decision carries complete public domain citation information. Because of that jurisdiction’s commendable speed, any Illinois decision that includes a citation to or quotation from an opinion of the U.S. Supreme Court less than four years old cannot employ a full U.S. Reports citation. It must instead rely on a commercial service for the permanent effective reference, as in the following:

This court did not intend to overrule a significant body of case law by this single sentence. “We resist reading a single sentence unnecessary to the decision as having done so much work.” Arkansas Game & Fish Comm’n v. United States, 568 U.S. ___, ___, 133 S. Ct. 511, 520 (2012).

Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 33.

New Mexico decisions face the same problem and adopt the same approach. See Morris v. Brandenburg, 2016-NMSC-027, ¶ 23. The Oklahoma Supreme Court doesn’t waste space with a skeletal “__ U.S. __, __”. See Okla. Coalition for Reproductive Justice v. Cline, 2016 OK 17, ¶ 3. That also holds for the print-published opinions of the Supreme Judicial Court of Massachusetts. See Commonwealth v. Arzola470 Mass. 809, 818 (2015).

One Possible Solution for the Court: Take a (Virtual) Page from Nebraska’s Law Reports

Four years ago, confronted by publication delays comparable to those now afflicting the U.S. Reports, Nebraska’s Supreme Court established an Electronic Publications Committee. Its charge was to devise a plan for cutting loose from the costs and delays generated by publishing books that few wanted to buy. The scheme it developed was implemented as of the beginning of this year. By rule the Nebraska Supreme Court declared print publication of the Nebraska Reports and the Nebraska Appellate Reports complete, ending with volume 274 of the former (which contains 2008 decisions up through July 2) and volume 15 of the latter (cutoff date, October 8, 2007). Those volumes were, in fact, the most recently published at the time the committee began its work. Physical distribution of advance sheets ceased with the fulfillment of all outstanding subscriptions this June.

State administered case report publication continues in Nebraska but now solely in digital form. Liberated from the demands of print production, sale, and distribution, the Nebraska Reporter of Decisions, Peggy Polacek, and her staff have already chopped years off the state’s publishing backlog. Eleven virtual volumes of the Nebraska Reports and five of the Nebraska Appellate Reports were completed in final form over the summer. They reside, fully authenticated, within the Nebraska Appellate Courts Online Library site – an open repository of all published opinions of the Nebraska Supreme Court and Nebraska Court of Appeals.

Having years of decisions already in the publication pipeline, Nebraska opted not to alter the jurisdiction’s existing format or citation scheme. Decisions and their quoted or cited portions are still to be identified by volume and page numbers. Unlike other states that have taken their case law digital, Nebraska did not switch to medium-independent case designations or paragraph numbers. Nebraska’s continuing reliance on a print-oriented citation scheme does not mean that those relying on its precedent must await a decision’s being bundled with others for its citation information. From the moment of release, published Nebraska decisions carry their volume number and ultimate pagination. State v. Liner, released on September 13, 2016, is to be cited: “24 Neb. App. 311”. It runs through page 322 of volume 24. As was true when print was the official medium, content on page 318 of the “advance” version will remain on page 318 of the final “certified” electronic version. When the next Court of Appeals decision is published it will be “24 Neb. App. 323”.  (The beginning of each decision starts a fresh page.) Every one thousand pages or so one digital volume is closed and the next, begun.

Could the U.S. Supreme Court Do the Same?

Unlike the “advance” opinions released by Nebraska’s appellate courts through its reporter’s office, the “slips” issued by the U.S. Supreme Court on the day of decision are not integrated compilations of the separate opinions they may contain preceded by the reporter’s syllabus. Each component, including that syllabus, has a full case heading.  They may be stapled together in print and merged into a single electronic file, but syllabus, majority, concurring, and dissenting opinions are all paginated separately. Any cross-references they contain – majority opinion to dissent, for example – must take a temporary form that addresses that awkward fact. Would it add too much time to the pre-release work flow to have the reporter’s office pull these pieces together as Nebraska’s does, stripping off the separate headings, running consecutive pagination through all constituent opinions, and conforming the internal cross-references? It shouldn’t. That done, the only further step required to eliminate the present citation lag would be to assign cases to a volume and run their pagination in a continuous sequence rather than resetting each at “1”. In other words if the first decision of a term runs to eight pages, start the second at page “9”. If the second consists of a 4-page syllabus, 21-page majority opinion, and 21-page dissent, commence the third at page “55”, and so on. If all of this were to delay public release of the Court’s decisions a few days or even a week, the harm would be minimal, the gain, enormous. The reporter’s office already maintains consistent pagination between the preliminary print edition of a volume’s constituent parts and the ultimate bound versions. The Nebraska approach would simply entail moving that one stage earlier in the publication process.

Nothing in this set of editorial reforms would imply that the G.P.O. need cease printing volumes of the U.S. Reports. The principal aim would simply be to prevent the huge delays in print publication from denying timely access to official citation information. It is true that the very factors that drove Nebraska to designate the final electronic version of its published decisions “official” lie behind the tardy publication of the U.S. Reports. Budgets are tight, and the use of, and therefore demand for, print law reports has plummeted. It is quite possible that if Supreme Court decisions carried their official citation data from the moment of release and final electronic versions were certified weeks or months rather than years later, even greater delays in the production and distribution of bound volumes of those opinions might follow. But who would care? Today, nearly all case research is done online. In the present environment the timeliness with which authoritative, citable electronic versions of precedent are made available is vastly more important than rate at which those same opinions are physically archived in a set of books.

Dealing with the Deep Backlog of Skeletal Citations

Because of the size of the Court’s publication lag many of its own citations to prior decisions are temporary and incomplete. For example, in the last decision of the 2015 term, Voisine v. United States, the slip version of Justice Kagan’s majority opinion includes these case references:

  • States v. Castleman, 572 U. S. ___, ___ (2014) (slip op., at 2) followed by numerous short form cites of the same case, many with slip opinion jump citations
  • Armstrong v. United States, 572 U. S. ___ (2014)
  • Descamps v. United States, 570 U. S. ___ (2013)
  • Abramski v. United States, 573 U. S. ___, ___, n. 10 (2014) (slip op., at 18, n. 10)

Slotting Voisone into specific pages of a virtual volume 579 of the U.S. Reports or the first decision of this coming term into the beginning of volume 580 need not await completion of volumes 565 through 578. On other hand, because of the frequency of the Court’s self-citation, recent decisions cannot be put in final form without the reporter’s office working its way relentlessly forward through the existing backlog.

As noted above, once liberated from print production Nebraska’s reporter of decisions has been able to move through that state’s accumulated unpublished decisions with impressive speed. It should, perhaps, also be noted that while the U.S. Reports may be more years behind than were the Nebraska Reports when the Nebraska judiciary began work on that state’s electronic publication plan, measured in numbers of opinions the state’s challenge was greater. During the U.S. Supreme Court’s past term it rendered only 81 decisions of which 17 were per curiam, five of them one-liners. During calendar 2015 Nebraska’s appellate courts delivered 260 decisions to the state’s reporter of decisions for publication.

A Need to Take Electronic Publication More Seriously

Bound volume 563 of the U.S. Reports, running through June 6, 2011, has, since late June, been on a shelf in the Cornell Law Library. Meanwhile, the Supreme Court’s web site has not pushed past volume 561 (covering the end of the 2009 term). Undoubtedly, the two missing pdf files are held at the Court somewhere; they were prepared there. But which office has the responsibility for placing them online? Apparently, none has ever been charged with providing electronic access to the preliminary print versions of decisions, which in the current pattern of dissemination are the first to provide full citation information.

One development of the last term provides modest grounds for optimism. Having been called out in 2014 for the undisclosed post-release substitution of revised slip opinions, the Court’s web site has begun to note when such changes have occurred and to provide a means for determining the exact nature of the revision.

In today’s environment, reducing the time involved in bringing the Court’s decisions to print, whether preliminary or final, is no longer an important goal. Making them promptly available to the public, the legal profession, and the nation’s other courts in final citable form is and that requires a serious program of electronic publication.

Would Congressional Action Be Required?

Most of the steps outlined here could be taken by Supreme Court staff without legislation. Following Nebraska’s lead all the way to cessation of print law report publication would, however, require that Congress amend the U.S. Code to authorize electronic publication as an alternative to print rather than a faster complementary track. Last year the Nebraska legislature passed such a bill, prepared by the state’s judicial branch.

For now 28 U.S.C. § 411 requires that: “The decisions of the Supreme Court of the United States … be printed, bound, and distributed in the preliminary prints and bound volumes of the United States Reports as soon as practicable after rendition ….” In recent years the “as soon as practicable” proviso has effectively swallowed the mandate of prompt printing and distribution. Ironically, in light of present realities, the act of 1817, which first established the reporter position, required publication of the Court’s decisions “within six months of their rendering.” Fifty years ago, when judges and lawyers still looked cases up in books, bound volumes of the U.S. Reports appeared within a year of the last decision they contained.

The time is ripe for the U.S. Supreme Court (indeed, for the full federal judiciary) to devote serious attention to the altered landscape of case reporting.

 

California (Finally) Ends Automatic Depublication

June 20th, 2016

California’s intermediate appellate courts, the Courts of Appeal, produce approximately ten thousand written opinions each year. Fewer than one in ten are published. In most cases, the decision to publish or not is made by the deciding court applying criteria set out in Cal. Rules of Court 8.1105(c). Except where res judicata or related doctrines are involved, opinions that are not certified for publication may not be cited or relied upon by “a court or a party in any other [California] action.” Cal. Rules of Court 8.1115(a).  While the deciding court makes the initial call, the California Supreme Court can “depublish” an opinion even as it lets the lower court’s disposition of the case stand. Cal. Rules of Court 8.1105(e). During 2015 the court did so in a dozen cases. (It can also direct that a Court of Appeal decision be published, but that is a rare occurrence.)

In a year’s time the California Supreme Court receives nearly eight thousand petitions for review, agreeing to hear less than ten percent.  Prior to a rule change that takes effect on July 1, 2016, the high court’s decision to take a case automatically placed the opinion being appealed in the “unpublished” category.  Of course, in the modern era, this did not prevented the circulation of the previously “published” decision in print or online.  Indeed, all “unpublished” opinions of the Courts of Appeal are released to the public at a judicial branch website. But automatic depublication blocked citation of it and any subsequent judicial reliance.

This unique rule dates from a time when the California Supreme Court reviewed trial court decisions de novo, so that its agreeing to hear a case effectively nullified the prior opinion of the intermediate appellate court in the matter. A 1984 constitutional amendment altered that framework. Bar groups and judges urged that the depublication rule be revisited, but without success. Three decades later the California Supreme Court released a set of proposed amendments for public comment. With some modification those changes were adopted in June 2016, effective July 1.

After that date a grant of review by the California Supreme Court will no longer automatically remove “published” status from a Court of Appeal opinion. Under the revised rule, the Supreme Court can take that step but only upon an affirmative decision to do so. Even with that change, a grant of review does automatically affect the weight to be given the opinion by other California courts. Pending resolution of the appeal, the Court of Appeal opinion “has no binding or precedential effect.” It may be cited but only for its “potentially persuasive value.”

Chalk this up as a very modest reform. As Professor David Cleveland reports in the most recent issue of The Journal of Appellate Practice and Process, the last decade has seen a significant and steady shift in state rules governing “unpublished” or “non-precedential” decisions. His article counts seven states as having moved to permit citation of unpublished decisions, one as going the further step of granting them precedential weight, and five as having eliminated the “unpublished” category altogether. California’s change comes nowhere near such measures or even the situation in the federal courts under Rule 32.1 of the Federal Rules of Appellate Procedure. Perhaps, in another thirty years?

 

 

 

From Blue to Indigo to …

May 20th, 2016

indigo

A New Citation Guide

A legal citation guide of a different hue, The Indigo Book, arrived on the scene this spring. Like the University Chicago Law Review’s Maroonbook, it was born of frustration over The Bluebook – but frustration of a very different kind.  The Maroonbook, first published in the late 1980s, still followed and revised by the University of Chicago Law Review, aimed to supplant The Bluebook’s complex and detailed dictates with “a simple, malleable framework for citation, which authors and editors can tailor to suit their purposes.”  In contrast, The Indigo Book, seeks to pry loose those very dictates, or at least the subset most important for participation in U.S. legal proceedings, from the intellectual property claims made by The Bluebook’s proprietors.

Working under the guidance of NYU copyright expert, Professor Christopher Sprigman, a team of students spent over a year meticulously separating the “system of citation” reflected in The Bluebook from that manual’s expressive content – its language, examples, and organization.  The Indigo Book is the result.  Like the ALWD Guide to Legal Citation, first published in 2000, it endeavors to instruct those who would write legal briefs or memoranda on how to cite U.S. legal materials in complete conformity with the system of citation codified in the most recent edition of The Bluebook while avoiding infringement of that work’s copyright.

Unlike the ALWD Guide, which competes with The Bluebook for a share of the lucrative legal education market at a similarly substantial price, this new entrant is free.  It can be viewed online or downloaded, without charge, in either of two formats – PDF or HTML.  As the work’s forward explains, providing “pro se litigants, prisoners, and others seeking justice but … lack[ing] resources … effective access to the system lawyers use to cite to the law” was, for its creators, an important goal.

Relatively few U.S. jurisdictions formally require that citations in court filings conform to the scheme set out in The Bluebook.  (I count one U.S. circuit court, a handful of U.S. district courts, and the appellate courts of eleven states.)  But Bluebook-compatible citations are consistent with the rules of most.  By removing price as a barrier and focusing on the legal materials most frequently cited in U.S. proceedings, this guide of a different color seeks to improve access to the nation’s judicial system.

Establishing a Space for Innovation

The Indigo Book is free in a second, more radical sense.  It has been released with a Creative Commons public domain dedication.  Anyone can copy and redistribute it.  Anyone can create new and different works based upon it.  No further permission from the creators or publisher is required.  The aim here is said to be the clearing of this zone, so important to our legal system, for further innovation.

From the very outset, The Indigo Book project has been both goaded and troubled by overbroad copyright threats and innuendo from The Bluebook’s proprietors and their attorneys.  (Carl Malamud, who has been central to the project and whose Public.Resource.Org is Indigo‘s publisher, tells the full lamentable story here.) By separating the widely used system of citation codified in The Bluebook from its particularized expression, The Indigo Book seeks to build a wall between such claims and the projects of future software and database developers and citation guide authors.

“Not Authorized by Nor in Any Way Affiliated with …”

Why indigo?  As discussed in an earlier post, the four law journals that publish The Bluebook hold registered trademarks in three variations of that name.  The Indigo Book was, for a time, going to be “Baby Blue.”  The law firm representing the Harvard Law Review Association demanded that the title be changed and that it not be replaced by one “consisting of or comprising the word ‘Blue’”While denying that “Baby Blue” posed any risk of trademark confusion or dilution, the creators of the new guide decided, nonetheless, to change its name rather than waste time and money on litigation.  Quite possibly they shared Isaac Asimov’s view:

It is customary to list indigo as a color lying between blue and violet, but it has never seemed to me that indigo is worth the dignity of being considered a separate color. To my eyes it seems merely deep blue.

What Are the Likely Prospects for the New Guide?

In legal education

The Bluebook is published by four law journals and commands the allegiance of nearly all law student-edited reviews in the country.  Due to the place of those reviews in law school culture, faculty members responsible for courses on legal writing are under powerful pressure to teach the “Bluebook” rules.  Over time that pressure induced the Association of Legal Writing Directors (ALWD) to bring that organization’s competing guide into complete conformity.  Like the new Indigo Book, the ALWD guide is better organized than The Bookbook itself and, on many points, clearer in explanation and illustration.  It, too, has saved space and maintenance burden by limiting itself to U.S. sources.  Even so, powerful network effects have limited its market share.  For The Bluebook is not merely manifest in the format of the citations it enables journal editors, legal academics, lawyers, and legal assistants to produce.  It also represents a matrix of rule numbers and tables that facilitates communication about and resolution of citation issues.  Biblical exegesis is characterized by reference to chapter and verse.  Law review debates over proper citation form refer to Bluebook rule numbers, tables, and text.  Even at the powerfully attractive price point of free, The Indigo Book will run up against the dependence of most citation discourse within America’s law schools, student-edited journals, and large firms on The Bluebook’s classificatory scheme and specific language.

As a Resource for “pro se litigants, prisoners, and others seeking justice”

In the form released the new guide is also unlikely to be of much aid to those navigating the legal system on their own.  By seeking to liberate the full system of citation explicated in 350 or so of The Bluebook’s pages, Indigo had, of necessity, to be far more detailed than any useful self-help guide should be.  Moreover, that detail incorporates numerous points on which The Bluebook reflects the undue influence of major publishers and many others in which is out of step with the evolving citation practice of lawyers and judges responding to the proliferation of electronic sources.

By placing their guide in the public domain, however, The Indigo Book’s creators have made it possible for groups preparing pro se handbooks, web site resources, and courthouse kiosks to draw upon it in preparing appropriately tailored citation guidance.  Other derivative work possibilities abound.  Bar groups or court systems may well be tempted to prepare citation manuals adapted to state-specific citation requirements and norms.  Citation software developers should be able to proceed without infringement fears. All of this is to be hoped for.

As the author of a free citation reference, now in its twenty-third year, I welcome The Indigo Book and all its future progeny.