Citation Alone Doesn’t Make the Argument

June 26th, 2014

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

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

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

Neutral Citation – An Important Anniversary

June 24th, 2014

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

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

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

3,5'-Diskette

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

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

June 18th, 2014

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

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1. “The Bluebook” – A registered mark

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

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

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

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

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

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

usersguide

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

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

nissan_altima

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

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

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

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

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

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

17 U.S.C. § 102(b).

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

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

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

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

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

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

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

Pennsylvania Supreme Court Drops Parallel Citation Requirement

May 20th, 2014

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

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

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

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

The ALWD Guide Capitulates

May 13th, 2014

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

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

 1. Editions 1 through 4

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

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

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

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

2. Positions Surrendered

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

a. Appellate court abbreviations

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

b. Treatment of the Federal Appendix reporter

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

c. Use of contractions in case names

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

d. Internet materials

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

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

e. Et al.

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

3. Bottom Line

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

Judges Revising Opinions after Their Release

April 29th, 2014

A. Background: How legislatures and agencies handle revision

1. Revision by Congress

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

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

2. Agency typos and omissions

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

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B. Judicial opinions – An altogether different story

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

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

 erratum

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

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

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

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

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

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

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More disturbing, by far, are:

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

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

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

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

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

1. Minimize or eliminate post-release revision

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

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

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

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

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

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

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

 

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

April 8th, 2014

A. Introduction

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

Brief Page

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

B. Electronic briefs and memoranda filed with federal courts

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

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

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

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

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

C. E-filing in Texas and other states

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

D. The implications for citation placement

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

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

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

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

E. Judge for yourself

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

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

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

From a current, high profile case:

F. Deeper issues raised by citations that are links

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

Where Should Citations Be Placed? An Old Debate, A Radically Changed Environment

March 28th, 2014

A. A Revived Debate

A recent column by Bryan Garner in the ABA Journal reprised a theme he has advanced for years: Lawyers and judges should stow their citations in footnotes.  Placed directly within the text of an opinion or brief, Garner argues, citations interfere with the reader’s ability to follow the writer’s ideas and also with the writer’s use of some of the more important techniques of effective writing.  When Garner took his case to the pages of the Court Review in 2001, he focused the argument on judicial opinions, drawing a response from Judge Richard Posner.  Posner conceded that the suggestion “had some merit … but not enough to offset its negative features.”  Most obvious among these, he wrote, “is that they force the reader to interrupt the reading of the text with glances down to the bottom of the page. They prevent continuous reading.”  He also noted that one could tread a middle path: “[T]he author always has the option of putting some … [citations] in footnotes.”

B. How the Electronic Legal Research Environment Bears on the Question for Those Who Write Judicial Opinions

1. Online, the citations in judicial opinions are converted to links

For most of us, the citations to cases, statutes, and administrative regulations we encounter in a judicial opinion are no longer static information about the authorities on which the text rests but electronic pathways enabling immediate access to them.  Read from a screen rather than a page they invite the reader, whether on the first pass through or on a subsequent one, to move back and forth between the primary text and the sources it cites.  Nor need the exploration end with the first link out, for authorities cited by that initial reference, can themselves be inspected with a touch of the screen or click of the mouse.  Cited cases can, with equal ease, be read against subsequent decisions interpreting, distinguishing, disagreeing, or even overruling their position.  The routine conversion of judicial citations to electronic pathways out from the text and targets for citator links into opinions has a direct bearing on optimal citation placement or so it seems to me.

2. Treatment of citation footnotes by most legal research services

The majority of legal database services convert footnotes to linked endnotes.  What this means for citations placed in footnotes can be seen in Google Scholar’s rendition of Harris v. Auto Club Ins. Ass’n,  (2013).  The route to the authorities cited on a point resulting from this treatment consists of two hops, the first following a link from the footnote call to the note, the second on to the case or statutory provision.  Importantly, having been moved from the bottom of the page to the end of the opinion, the citation can no longer be viewed together with the text to which it is attached – a distinct negative.

Harris CaseThe distance between text and citation is even more troublesome when the citation is itself the target of a citator link or search.  Consider a researcher working forward from Smith v. Physicians Health Plan, Inc., 444 Mich. 743 (1994).  An up-to-date index of cases citing Smith will list and link to Harris; however, since the full cite to Smith lies in footnote 24 of Harris, the careful researcher will need to go there before backtracking to the paragraph discussing that 1994 decision.  And on Google Scholar, Bloomburg Law, Casemaker, Fastcase, and Loislaw footnote 24 has become endnote 24.

Compare the Harris example with a Posner opinion (or, for that matter, with a decisioin by the U.S. Supreme Court).  When I look at Judge Posner’s decision in a recent Social Security case, Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013) I find the proximity of the citations to the propositions they support a decided help in determining whether and when to follow the electronic paths they offer and a convenience when I make such a journey out and back.

Hughes Case

3. The conversion of footnotes to “paragraph notes” or popups

No doubt these considerations explain why neither Lexis nor Westlaw converts judicial opinion footnotes to endnotes.  Their “classic” versions place notes directly following the paragraph in which their calls appear (making them “paragraph-notes,” if you will).  And their next generation systems, LexisAdvance and Westlaw Next, put footnotes in popup windows that appear immediately adjacent to their calls when activated.

Harris Case on Lexis

If a judge could be certain that her opinion would be read from the screen and only as transformed by Lexis or Westlaw there would, I think, be a decent argument for placing judicial citations in footnotes.  But that is an alternate universe.  So long as the majority of caselaw services put greater rather than less distance between footnote calls and their notes than the printed page, inline citations seem the better choice, at least for this reader.

C. How Different Is the Situation for Lawyers Writing Briefs and Memoranda?

While Bryan Garner’s recent essay on citation footnotes draws its examples from court decisions, it takes the same position on the writing that lawyers direct at judges.  Garner writes: “whether or not you ascend to the bench someday, you’ll need to make up your own mind on this issue.”  In a subsequent post I’ll consider how the efiling of briefs and judges reading from tablets may bear that decision.

 

Should It Be “Commissioner”, “Comm’r”, or “Commr.”?

February 27th, 2014

1. Truncating and Abbreviating Case Names

The “case name” segment of a case citation serves a very different function from the rest.  Rarely is it used to retrieve the decision.  Although “case name” searches are possible with all online services, use of the case “cite” delivers more accurate results, particularly if the parties have common names or are frequent litigants.  (Try searching on “Smith v. Smith”, “Smith v. Wal-Mart”, or, heaven help you, “Smith v. United States”.)

So why include the parties’ names as part of a citation?  I’ve seen a variety of lame explanations (e.g., “reveals the nature of the litigation”), but am convinced that the fundamental justification rests on the brain’s greater capacity to handle names.  Imagine having to remember or to discuss cases by their retrieval IDs.  Suppose, for example, after making a point in oral argument or law school class you were to be challenged to reconcile your position with “499 U.S. 340.”  Those who litigate in federal court may need to think and argue about “Rule 11 sanctions,” but I wager that most will find it easier to refer to the Supreme Court’s 1991 decision published at 499 U.S. 340 using its name or style or title or caption and will be able to remember that name long after forgetting the case cite.

In the official report that decision appears under the heading “Feist Publications, Inc. v. Rural Telephone Service Co., Inc.”  In oral exchange, and perhaps in memory, that may reduce to “Feist.”  But when constructing a complete citation how should the case name be written?  On that question interests of completeness and intelligibility collide with the need to minimize a case citation’s interruption of the flow of argument it is intended to support.  As one might expect there are different answers as to how that balance should be struck.

2. Stripping Off Excess

US_title

Beginning with the heading or title the deciding court has given a case, there seems to be a fair degree of consensus around several truncation principles:

  • If multiple actions are consolidated in an appeal, drop all but the first.
  • If multiple parties are involved on either or both sides of the case, use only the first.
  • With individuals trim down to a single name, the surname unless that does not appear (“Pickering” rather than “Marvin L. Pickering”, but “Marvin P.” if the surname is not given).  This practice can stumble over Chinese, Vietnamese, and Korean names when they appear in traditional sequence.
  • Shrink longer procedural phrases (in English) to a short set of Latin equivalents (“In the Matter of Buddy Lynn Whittington, Petitioner” becoming “In re Whittington”).
  • Limit designations of business organization to the first (which would lop the “Inc.” off “Rural Telephone Service Co., Inc.”).

And so on.

3. Compressing What Is Left through Abbreviation: The Bluebook (and ALWD Citation Manual)

The Bluebook takes an aggressive approach to further party name reduction.  It directs that some 144 words that may appear in a business, non-profit, or public entity’s name be abbreviated and prescribes the abbreviation to be used for each.  Actually, the number is larger than 144 since some entries are word families – that is two or more words with the same root, treated as one, “Transport” and “Transportation”, for example.  Words not on the list may, the manual says, be abbreviated so long as they contain eight letters or more and the abbreviation would save “substantial” space.  Any word on the list, however, must “always” be abbreviated “even if the word is the first in a party’s name.”  (Rule 10.2.2.)  (Prior to 2000 The Bluebook spared the first word, but the seventeenth edition ended that dispensation.)  Applying these Bluebook rules to Feist compresses the case name by nearly one-third to Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.  The ALWD Citation Manual, which achieves the same result in this and most other cases, contains an even more extensive list of abbreviations.  (Striking a very different balance, The University of Chicago Manual of Legal Citation pronounces that “Abbreviations in case names are rarely used.”)

4. The Bluebook’s Limited Influence on This Point

Of the many respects in which the styles prescribed by The Bluebook and the remarkably similar ALWD Citation Manual fail to reflect the diversity of citation formats in the professional writing of lawyers and judges, this may be the most conspicuous.  Style manuals governing judicial writing in important states exhibit quite different levels of enthusiasm for case name compaction (shorter lists, a first word exemption).  Some add words.  Some specify different abbreviations for words on The Bluebook list.

While the rules of appellate practice in a small number of states (Delaware, New Mexico, North Carolina) do appear to direct that case citations in memoranda and briefs conform to the style set forth in The Bluebook, both context and the citation practices of those very courts cast doubt on whether their directives were intended to extend beyond the cite, date, and court components of a case citation to case name abbreviation.  Moreover, in several instances (Alabama, California, Idaho) where a court rule refers to Bluebook style, it also authorizes use of one or more alternative citation guides or speaks of The Bluebook as providing guidance (South Carolina).  In most U.S. jurisdictions, including the federal courts, there are no directives that can reasonably be construed as requiring the use of The Bluebook’s case name abbreviations.  An FAQ at the Supreme Court’s web site states quite explicitly: “The Supreme Court does not have a style manual for advocates before the Court.”  It goes on to suggest those seeking guidance might “search Supreme Court materials for citation to a similar document.”

5. The Supreme Court’s Approach

Anyone following that advice will quickly realize that on this point, as on so many others, the Supreme Court’s citations do not conform to The Bluebook.  To begin, the Court does not abbreviate the first word of party names.  A recent citation of an earlier Supreme Court decision identifies the case as Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480 (1985).  Per The Bluebook both “Federal” and “National” should be abbreviated.  Indeed, the length of both “Conservative” and “Political” make them candidates for elective abbreviation.  In other respects as well the Court exhibits a gentler approach to abbreviation.  There are numerous words on The Bluebook list it does not regularly abbreviate.  The Supreme Court’s subsequent citations of “Feist” consistently render its case name, which contains three words on The Bluebook’s mandatory list (“Publications”, “Telephone”, and “Service”), as Feist Publications, Inc. v. Rural Telephone Service Co.  A recent citation of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) abbreviates neither “Township” nor “School” as The Bluebook directs.  Even more significantly, the Court’s citation includes both the name of the township and county which The Bluebook would drop.  It also employs “Cty.” rather than The Bluebook’s “Cnty.” for “County”.  Another case recently cited by the Court is Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434 (1999).  According to The Bluebook that case name should be shrunk to Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship.  In short, there is only limited correspondence, in degree or detail, between Supreme Court’s use of abbreviations in citations to its own precedent and The Bluebook rules.  Some of the federal circuit and district courts follow the Supreme Court’s lead in this area; many do not.

6. Fifty States, Diverse Styles

A. New York Style

New York’s reporter of decisions has a published style manual.  Since the state’s Law Reporting Bureaus oversees the publication of decisions of New York’s intermediate appellate courts and some trial decisions as well that manual guides the writing of judges throughout the state and indirectly influences the citation practices of lawyers submitting memoranda and briefs to them.  While the New York manual shares The Bluebook’s enthusiasm for abbreviation, containing an even longer list, it takes a different position on one point of style on which reasonable minds (and therefore citation practices) can easily differ.  In forming abbreviations, The Bluebook favors contractions (e.g., “Eng’r” and “Int’l”, though curiously “Envtl.”). Prior to the fourth edition, the competing ALWD Citation Manual used no apostrophes; all its abbreviations ended with periods (e.g., “Engr.” and “Intl.”).  Its fourth edition authorizes use of contractions as an alternative (e.g., “Engr.” or “Eng’r”, “Intl.” or “Int’l”).  Judging from the advance publicity, the stance of the forthcoming fifth edition is likely to be at least as deferential to The Bluebook on this esthetic matter.  But New York courts are not.  With only two exceptions New York style ends abbreviations with a period.  In New York it is “Assn.” not “Ass’n”, “Commr.” not “Comm’r”, “Govt.” not “Gov’t”, “Intl.” not “Int’l”, and so on.

B. Massachusetts and Illinois

The Massachusetts style manual sides with The Bluebook on contractions.  The Illinois manual also agrees that “Association” should be reduced to “Ass’n” but like the University of Chicago manual, it calls for very little abbreviation.  Illinois style restricts case name abbreviations to “Association” and ten other words.  Even words on this short list are to be written in full if they are “the first word in the name of a party.”

C. Michigan

If New York favors periods, Michigan rejects them as altogether unnecessary.  The Michigan Uniform System of Citation includes a number of contractions (e.g., “Ass’n”, “Comm’r”, “Int’l”) but trims the concluding period off all abbreviations.  “Brothers” is “Bros”, “Construction”, “Constr”, and so on.

D. Oregon and California

Oregon’s approach to case names rests on the editorial norms of the source.  Rather than imposing a set of its own abbreviation rules, the Oregon manual incorporates those of the cited jurisdiction by providing that case names be drawn from the running heads of the case’s official reporter or failing that the regional reporter in which it appears.  During the print era this rule, which gives up on uniformity, had the advantage of simplicity.  Now that few writers rely on print reporters, with many actually lacking reasonable access to them, the rule’s explicit prohibition on using Westlaw or LEXIS (or presumably any other electronic source) “as a source for the official case name” is manifestly an anachronism.  By contrast, the California Style Manual steps into the modern era.  Its section 1:1 provides: “Follow exactly the shortened title used in the running head of a paper-based reporter or a shortened title shown in a computer-based source.” (Emphasis added.)

7. What Approach Should the Writer of a Brief or Memo Adopt?

What should an attorney to do in the face of so many different approaches?

A. Be Consistent

First: Be consistent.  California has a distinctive style manual.  A court rule calls for citations to conform to it or, alternatively, to The Bluebook.  It concludes, however: “The same style must be used consistently throughout the document.”

That is a sound principle in any jurisdiction.  In states like Illinois, Massachusetts, Michigan, New York, and Oregon where judges follow a clear set of abbreviation norms, but lawyers are not directed to adhere to them, the prudent lawyer employs some set of abbreviation principles consistently.  Convenience to the judge may argue for employing the state’s distinctive style, while law school training, available software tools, or the citations provided by the writer’s preferred case law database may point another direction.  A failure to adhere to a single, consistent approach throughout a piece of writing is far more likely to create a negative impression of care than a lawyer’s particular choice of style.

B. Routinize the Process

Second: Avoid devoting serious time to what ought to be routine.  Some find it possible to internalize that routine.  But consistent use of a single digital source for case law should do most if not all of the job.  The major services all impose an acceptable measure of case name uniformity across courts and jurisdictions.  Some make it easier than others to copy the complete citation of a retrieved case, including their rendering of its name, but at worst the step requires a simple block and copy of a case’s title or listing.  Without marketing the fact, Lexis has long provided case names that conformed to Bluebook citation norms (e.g., Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. Lasalle St. P’ship).  WestlawClassic conforms to National Reporter System style (e.g., Bank of America Nat. Trust and Sav. Ass’n v. 203 North LaSalle Street Partnership).

lexisadv

westlawnextWestlawNext and Lexis Advance provide ease of citation extraction as a feature, coupled with a measure of style selection.  With WestlawNext the style selected affects how the case name is abbreviated.  In both services “Standard” citation format (code name for Bluebook) is the default but not the sole option.  Presumably, The Bluebook’s registered trademark prevents their identifying its style using the name by which we all know it.

There are also a variety of software tools that offer case name abbreviation along with citation checking and reformatting, but they are a topic large enough to warrant treatment in a later post.

 

Oklahoma Makes It Official (But What Does That Signify?)

February 13th, 2014

1. “Official” Digital Case Law

For over 16 years Oklahoma appellate courts have attached non-proprietary, print-independent citation data to their decisions at the time of release, placed those decisions online at a public site, and required lawyers to cite state precedent using this contemporary system. Moreover, setting Oklahoma apart from other neutral citation pioneers, the judiciary staff applied neutral citations retrospectively to all prior decisions rendered during the print era, placed copies of them online as well, and encouraged but did not require that they also be cited by the new system.  Until this year, however, the print reports of the National Reporter System remained the “official” version of Oklahoma decisions.  As of January 1, 2014, sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the “official publisher” of its decisions, it revoked that designation.  For decisions of the Oklahoma Supreme Court and the Oklahoma Court of Civil Appeals rendered after that date, the digital files published on the Oklahoma State Courts Network constitute the official versions.  Reflecting the new status, decisions that have become final will now be marked official by “the placement of the respective court’s official seal of authentication” in the upper right hand corner.  See, e.g., Carney v. DirectTV Group, Inc., 2014 OK CIV APP 4.

official1

The Oklahoma judiciary is not the first to declare electronic versions of its appellate decisions “official.”  It follows Arkansas, Illinois, and New Mexico in taking this step.  In addition there are states that while not making such a declaration nonetheless maintain reliable online collections of final, citable copies of their appellate decisions as Oklahoma did prior to 2014.  Nonetheless, Oklahoma’s recent action set on top of its strong history of electronic publication and viewed alongside the situation in other states that take digital publication seriously invites scrutiny of the implications of declaring a jurisdiction’s electronic case law files “official.”

2. Implications for Citation?

In some cases “official” means “must cite to,” but as applied by the Oklahoma Supreme Court the new label compels no change in case citation.  Ever since 1997 the state has required use of citations embedded in the electronic decision files released by the court and stored at its public web site.  Furthermore, while the Thomson Reuters regional reporter has had its “official” status revoked court rules still call for lawyers to furnish parallel citations to P.3d.   (Since the Oklahoma State Courts Network has, from the beginning, furnished each decision’s regional reporter citation and the rule does not mandate parallel pinpoint citation, that requirement, while unnecessary, imposes no added research burden on the state’s lawyers.)

3. In the Event of Discrepant Texts, the “Official Version” Prevails

Presumably one consequence of the “official” designation is an altered rule for resolving conflicts among versions.  The U.S. Supreme Court web site, which distributes electronic slip opinions on day of decision, and years later, following publication of the final bound volume of the United States Reports, a pdf file of that volume in full, explains “official” in these terms:

Only the printed bound volumes of the United States Reports contain the final, official opinions of the Supreme Court of the United States. In case of discrepancies between a bound volume and the materials included here–or any other version of the same materials, whether print or electronic, official or unofficial–the printed bound volume controls.

In truth in the modern era this meaning of “official” has little occasion for application.  As I observed in a 2011 article about Arkansas’s break with official print reports:

Most legal research and law writing is done without checking key passages drawn from unofficial sources against the version designated as “official.” In those rare cases where discrepancies appear and where they bear directly on the resolution of a critical issue courts generally do not take the literal text of the official publication as dispositive. They weigh other evidence, looking to the context of the contested word, phrase or passage, its consistency with other decisions and whether a typographical error seems probable. [Footnotes omitted.]

4. Having Designated a Public Database as the “Official” Record of Its Decisions, the Court Will Take All Necessary Steps to Assure Its Accuracy

In varying degrees courts fiddle with their decisions in the days and weeks following initial release.  The judicial web sites of some jurisdictions are very clear that one shouldn’t count on such post-release revisions being incorporated into the electronic texts they hold.  A recent example from Indiana illustrates the problems this can generate.

On October 17, 2012, the Indiana Supreme Court issued an opinion in J.M. v. Review Bd. of Indiana Dept. of Workforce Development.  The decision was posted at the web site of Indiana’s judicial branch.  As released footnote 1 of the decision read:

Identities of the claimant and employing unit are generally subject to the confidentiality requirements prescribed in Indiana Code section 22-4-19-6(b) (2007). This confidentiality requirement is expressly implemented as to judicial proceedings by Indiana Administrative Rule 9(G)(1)(b)(xviii).

Less than a month later Indiana’s intermediate appellate court quoted the J.M. case for that proposition.  Sometime later (it being unclear exactly when) the Indiana Supreme Court revised footnote 1 of the J.M. case to read:

Although in this case we kept the claimant and employing unit confidential, our practice going forward will be to keep these parties confidential only if they make an affirmative request as outlined in Recker v. Review Board, 958 N.E.2d 1136, 1138 n.4 (Ind. 2011). As discussed in Recker, an affirmative request must be made for confidentiality.

BUT although the change was communicated to Thomson Reuters for sure and perhaps other publishers, as well, the opinion file at the judicial branch web site remained unaltered.  Now the web site does caution:

Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters) or from the Clerk of the Supreme Court, Court of Appeals, and Tax Court.

But the discrepancy between the footnote text in the regional reporter and the original version posted at the court site forced the Court of Appeals in a later case to consider which one to follow.  In Albright v. Review Bd. of Indiana Dept. of Workforce Development, decided on September, 12, 2013, the court concluded that “[a]lthough there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court” and despite its own past precedent relying on the original version, it was obliged to conform to the practice set out in the regional reporter version.  Manifestly, the appeals court was displeased with the failure to flag the revision of the J.M. decision at the judicial web site.  Before long an updated J.M. file appeared at that site.  But reflecting the site’s uncertain function, that revised file purports to be the original 2012 decision, for it carries an image of the Clerk’s seal showing the date October 17, 2012. Only the file’s metadata (“properties”) show that it was modified on October 30, 2013, following the Court of Appeals decision pointing out the discrepancy.

5. Official Digital Case Law and Authentication

Indiana’s failure to track or report opinion revision at the court site highlights the need for official sites to furnish some means of assurance to those relying on their electronic decision texts that they have not been altered, altered either by the court or in the course of redistribution by a legal information service or publisher.  Section 5 of the Uniform Electronic Legal Material Act (UELMA), promulgated in 2011 and now enacted in eight states, requires that public bodies using electronic means to disseminate “official” legal materials provide authentication, namely “a method for the user to determine that the record received by the user … is unaltered.”  While the Act is careful to remain “technology-neutral, leaving it to the enacting state to choose its preferred technology for authentication” it clearly requires more than the insertion of an image of the court’s seal, Oklahoma’s measure for assuring users that a decision file is the “final” and “official version.”  The Indiana example, noted in the prior section, demonstrates how easy it is to change a decision file and reinsert such an image.

Two of the states moving to official digital case law provide authentication in the UELMA sense.  Both Arkansas and New Mexico use digital signatures to do so.  See, e.g., Loveless v. Agee, 2010 Ark. 53 and State v. Sisneros, 2013-NMSC-049.

official2   official3

An alternative, employed by Utah with its administrative code, is to provide a hash for each official electronic document.  Although these states were not required to provide technical assurance of this sort since, like Oklahoma, none of them has yet adopted the uniform act, their authentication measures illustrate what “official” electronic law reports can and ought to include.