In 2014 this blog reported on the decision by Oklahoma’s Supreme Court that the electronic versions of state appellate decisions published on the Oklahoma Supreme Court Network (OSCN) would replace those printed in the National Reporter System as “official”. A budget crisis brought on by declining oil revenues now places that critical publication channel in jeopardy. A proposal before the legislature would divert nearly all the dedicated fees on which OSCN depends to other uses.
New Mexico’s Unique Citation Rule
Since August 1, 2013 briefs, memoranda, and other papers filed with New Mexico’s courts have been required to use a system of medium-neutral case citation for all New Mexico appellate decisions. That citation system, similar although not identical to the model recommended by the American Bar Association and American Association of Law Libraries, was first implemented by the New Mexico Supreme Court in 1996. Pierce v. State, released for publication on January 4th of that year, was designated “1996-NMSC-001″. The first decision of the state’s court of appeals in 1996, State v. Gutierrez, carried the citation “1996-NMCA-001″. Both were issued with numbered paragraphs. Simultaneously issued citation rules required filings in New Mexico courts to cite those decisions and subsequent ones using their medium-neutral citations.
What is unprecedented about the 2013 amendment to those rules is that it requires that New Mexico’s print-independent citation system be used for all pre-1996 decisions reaching back to 1852. No other state has taken this step. Shortly after Oklahoma implemented medium-neutral citation in 1997, it retrofitted all prior reported decisions. But that state’s citation rule, then and now, simply provides that parallel citations employing the print-independent scheme are “strongly encouraged for opinions promulgated prior to May 1, 1997“.
The New Mexico Compilation Commission began as an agency responsible for producing a full compilation of the state’s statutes, hence its name. In 1982, however, the commission was given additional responsibility — publication of the New Mexico Reports. In 2004 it was declared to be the state’s official legal publisher. In 2011 the commission ended print publication of the New Mexico Reports, and the state’s supreme court designated the authenticated electronic files of decisions at the Compilation Commission web site their final, official version. And in 2012 the Commission’s database of electronic decision files, each with a medium-neutral designation (e.g., “1982-NMCA-051″) and paragraph numbering, was extended all the way back to Bray v. United States, 1852-NMSC-001.
Today, the Compilation Commission offers legal professionals and state offices the compiled statutes of New Mexico in both print and electronic format. Combined with the state’s case law, court rules, decisions of the regional federal courts, and other material, the commission’s integrated DVD and online database serve state and local government offices and compete with the commercial research services in the legal information market. Because of an attractive subscription price (roughly $60 a month for the general public, less for state and local government agencies), official status, and a growing list of features (most recently a limited citator service for its case reports) these services, known as NMONESOURCE, do, in fact, offer serious competition.
The principal drawback of the Compilation Commission’s database for legal professionals is its tight focus on New Mexico. With some frequency the state’s judges and lawyers need access to federal case law, statutes, and regulations. On occasion, they must consult decisions from other states. Although the Compilation Commission’s electronic library includes a collection of the most useful federal decisions and serves as a portal, linking to Google Scholar for the case law of other states and U.S. government sites for the Federal Register and Code of Federal Regulations, it falls short of providing a full range of non-New Mexico primary legal material. At a minimum the users of NMONESOURCE must, from time to time, turn to some other research service. Convenience may lead them to stay or even start out elsewhere. The default “other service” for New Mexico’s lawyers is Fastcase, available as a membership service to all members of the bar. For the state’s judges it is Westlaw, to which all of them, from the district courts through the state supreme court, have access under a group Westlaw subscription.
Consequences to Date
Compliance by Judges, Lawyers, and Law Students
Current decisions of the appellate courts of New Mexico model the citation format the 2013 rule requires of lawyers. While that rule does not require parallel print-based citations for state decisions dated after the cutoff for the final volume of the New Mexico Reports, judges continue to include parallel references to the Pacific Reporter of the Thomson Reuters National Reporter System. As the rule directs, however, their pinpoint references employ the paragraph numbers of the medium-neutral format. Review of a small sample of briefs filed in recent New Mexico appeals leaves little doubt that the system has also taken hold among lawyers. Student editors of the New Mexico Law Review employ the new citation method in their writing.
Take Up by Major Law Databases
To comply with the 2013 citation rule, the judge, lawyer, or law student needs access to a database that has retrofitted its collection of New Mexico’s pre-1996 decisions with medium-neutral case identifiers and paragraph numbers. A database search on “contract breach” may lead a researcher to the 1959 decision of the New Mexico Supreme Court in Wolf v. Perry or the 1993 case, Mark V, Inc. v. Mellekas. When first published and for years thereafter the volume and page numbers of those two decisions in the New Mexico Reports and Pacific Reporter would have provided proper citations. Indeed, they had none other. But as of August 1, 2013, Wolf v. Perry is to be cited as “1959-NMSC-044″; Mark V, Inc., as “1993-NMSC-001″. While a search on Bloomberg Law, Google Scholar, or Fastcase will take you to those cases, none of those services yet delivers their neutral citations, let alone the paragraph numbering needed to direct a reader to a specific passage.
Does this place the subscription service offered by the New Mexico Compilation Commission in a unique competitive position? No. The same search conducted on LexisNexis or Westlaw reveals that those services have followed the commission’s lead and added neutral cites and paragraph numbers to all pre-1996 New Mexico cases. Other research services serious about the New Mexico market will, no doubt, do the same. No license from the state is required. Despite the copyright notices that appear throughout the Compilation Commission site, New Mexico could not and does not claim copyright in either the case citations or paragraph numbers.
In the meantime, researchers who wish to cite pre-1996 cases identified through use of a database that has not inserted the new citation parameters can obtain them, case-by-case, from open access resources offered by the Compilation Commission. The commission’s web site holds tables that allow one to convert any pre-2013 official cite (“65 N.M. 457″ or “114 N.M. 778″, say) to the new system (“1959-NMSC-004″ and “1993-NMSC-001″, respectively). The site also provides, as a free public resource, a comprehensive case law collection reformatted in accordance with the new standard. From it one can draw the paragraph numbers the new rule calls for in pinpoint cites. Furthermore, because the commission’s site is open to external search engines it is possible to bypass the lookup tables and go straight to the decision one wants to cite. A Google search on “114 N.M. 778″ or “845 P.2d 1232″ limited to the commission’s site will lead directly to the medium-neutral version of Mark V, Inc. v. Mellekas as well as recent cases citing that decision. In fact, because the site is open to external search engines the initial case research need not begin elsewhere.
Lack of Reinforcement in NMSA and Most Other Annotations
As the state’s official publisher the New Mexico Compilation Commission also publishes the New Mexico Statutes Annotated and the New Mexico Rules Annotated. Both are included in electronic form as components of its online and disc products. They are also sold in print. In neither have annotations to pre-1996 decisions yet been conformed to the new rule. An annotation’s reference to a 1994 case will still cite it as “In re Cutter, 118 N.M. 152, 879 P.2d 784 (1994)” rather than “In re Cutter, 1994-NMSC-086, 118 N.M. 152″. So long as a researcher is working from the DVD or online version the annotation’s obsolete format is not a problem for the cites are linked to copies of the opinions, which carry the now official neutral citations and paragraph numbers. On the other hand, since programmatic conversion of the old-form citations should be fairly straightforward there is reason to expect that it will occur before long.
The annotations that appear in Michie’s Annotated Statutes of New Mexico, as published online by LexisNexis, do contain cites that conform to the new rule. Those in West’s New Mexico Statutes Annotated and in the Fastcase annotations to the New Mexico Statutes, as yet, do not.
Effects Limited to New Mexico
Many decisions of the U.S. District Court for New Mexico do employ the state’s medium-neutral citation scheme when citing its courts’ post-1996 decisions. Not all do, however, and there is little evidence to date that federal judges will be induced to cite older New Mexico decisions in accordance with the 2013 rule. When decisions from New Mexico, contemporary or older, are cited in other states, even states with their own systems of neutral citation, they are, almost invariably, cited by volume and page number.
A Model for Other States?
Oklahoma is the only other state to apply a non-proprietary medium-neutral citation scheme retrospectively to its full body of case law. There, nearly two decades of “strong encouragement” to use the system in citing older decisions has had a pervasive effect on in-state citation practice. In Oklahoma, like New Mexico, the policy was undergirded by creation of a comprehensive database of state law open to judges, other public officials, lawyers, and members of the general public — an initiative explicitly aimed at loosening dependence on commercial systems.
The barriers inhibiting prospective adoption of any new citation approach are sufficiently daunting and the costs of creating the necessary supporting database large enough that all other states adopting medium-neutral schemes have been content to leave their print-era case law wrapped in print-era citations. Two of them, Arkansas and North Dakota, have done so despite having created public databases of earlier appellate decisions. So long as the boundary between old and new is distinct this seems a totally defensible approach. How a Illinois judge or lawyer should cite decisions of that state’s courts rests very clearly on when the decisions were filed. Those released prior to July 1, 2011 and published in the Illinois Official Reports must be cited by volume and page number. Decisions filed on or after July 1, 2011 with a “public-domain citation” must be cited using it.
What reasons might have led New Mexico to take a more radical approach to citation reform? The first is that it could. Without a full retrospective case law collection the publications and legal research services of the New Mexico Compilation Commission were seriously incomplete, including importantly its flagship New Mexico Statutes Annotated. Assuming that construction of such a comprehensive digital archive had to be undertaken, the attachment of non-print-based citations in the same format as those that judges and lawyers had used for post-1996 cases may have seemed a modest add-on. Moreover, the rule change could be seen as placing NMONESOURCE, the Compilation Commission’s subscription service, in a uniquely authoritative position. Set up as an “enterprise unit” funded out of sales and subscription revenue along with a dedicated portion of court filing fees, the commission was in need of a resource boost. As the annual report of the New Mexico judiciary for fiscal year 2013 noted:
The challenges facing the [commission] are the increases in publishing costs while revenue declined for the second year in a row. There is a significant loss in civil action filing fees due to the decrease in civil actions filed. There is strained subscription revenue stemming from the economy overall and the increase in self-represented litigants who elect to file civil actions and appear in court without legal counsel. Lawyers are forced to make difficult decisions to postpone subscribing to the official laws in favor of the limited, unannotated laws on the public access site.
However, since that same public access site provides a complete set of New Mexico decisions as well as look-up tables matching volume and page number cites with their medium-neutral equivalents and the leading commercial database services have rapidly incorporated the new cites, the 2013 rule change may not, in the end, have a significant effect on NMONESOURCE subscription revenue.
No other U.S. jurisdiction has an agency with the broad charge and challenging duties of New Mexico’s Compilation Commission or today has the initiative, incentive, or resources within the judiciary to create a database like the one Oklahoma established years ago. For that reason it seems unlikely that the path New Mexico and Oklahoma have blazed will be followed by others anytime soon.
A recent decision of the West Virginia Supreme Court of Appeals quotes a local aphorism that underscores the importance of specificity when citing either to the record or legal authority. It is to the effect that: “Judges are not like pigs, hunting for truffles buried in briefs.”
In 1873, Frank Shepard began compiling and selling lists of citations to Illinois decisions printed on gummed paper (Shepard’s System of Adhesive Citations). Purchasers pasted them into the margins of their bound case reports. Shepard’s lists linked each reported case to any subsequent reported decision that referred to it. When gummed addenda proved too cumbersome a tool (even more troublesome to maintain than looseleaf volumes), Shepard’s Citations moved to separate volumes. These were books of citations designed to stand beside law reports – volumes that simply pointed from one book to others by means of citation.
For over a century law students, lawyers, and judges conducted forward citation searches on key decisions using the Shepard’s publications. So tight was the association that the process became known as “Shepardizing”. One “Shepardized” a case to assure it had not be overruled by a higher court, to determine its status and range of interpretation within the jurisdiction of origin, to see how it had been treated elsewhere.
Cases and Citators Go Digital
Once electronic databases were central to case research, their incorporation of a citator function became essential. The value of providing the digital equivalent of Shepard’s gummed list proximate to every retrieved opinion was obvious. And in a hypertext environment that list of citing cases could itself offer point and click access to each one of them. Moreover, once held in a database the entries could be filtered and sorted. Today, all case law database services of professional quality offer retrieval of subsequent citing cases as an option adjacent to each opinion. Some not only list the citing cases but analyze and characterize those references as the Shepard’s print publications once did.
As electronic case law collections evolved, however, they posed fresh challenges for these companion citators. Increasingly the leading online databases added decisions that the Shepard’s lists had ignored, cases without standard print citations. These included opinions that would never be published in print, either because of court designation or publisher discretion, as well as “slip” versions of those whose publication was anticipated but had not yet occurred. Generally unexamined is the extent to which the relative performance of today’s online citators is affected by how they deal with citations in and citations to opinions falling in these two categories. That performance varies considerably. Researchers who assume complete results are, with some services, likely to miss important cases. Those who know the limitations of the citator on which they rely can, when necessary, augment its results with their own database search.
The Citator Challenges Posed by Unpublished Decisions
Citations to Not Yet Published Decisions
Because of their high volume Social Security cases provide a particularly clear illustration of the problem posed by the delayed application of citation parameters and the range of responses to it by the citators now embedded in the major online services. As of April 23 five “precedential” decisions in cases appealing a denial of benefits by the Social Security Administration had been released by the Seventh Circuit U.S. Court of Appeals since the beginning of 2015. (Decisions the Court does not deem significant to other cases it labels “Nonprecedential” and withholds from publication in the Thomson Reuters Federal Reporter series.) “Four of the five were written by Judge Richard Posner. Three of his decisions and one by Judge Daniel Manion reversed trial court decisions that had affirmed the agency’s benefit denial.
From the moment of release, the potential ripple effect of opinions like these is substantial, throughout the district courts falling within the Seventh Circuit and beyond. Consider the numbers. During the twelve months ending June 30, 2014, those districts received 1,441 Social Security appeals. Within weeks, in some cases days, the five 2015 Court of Appeals decisions were being cited. Curvin v. Colvin, No. 13-3622 (7th Cir. Feb. 11, 2015), the earliest of the set, has now been cited at least 12 times. (A pro-claimant Social Security decision of the Seventh Circuit handed down a little over a year ago – Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014) – has been cited over 125 times, at least twice outside the circuit.)
Curvin illustrates the difficulty faced by anyone or any system attempting to track these citing references. The decision was handed down on February 11, 2015 but did not receive its “778 F.3d 645” designation until a month and a half later. During the intervening weeks it was cited at least eight times by district courts within the Seventh Circuit. Perforce those citations identified the Seventh Circuit opinion by docket number and exact date or a proprietary database citation (“WL”). Most, but not all, used both in parallel, yielding citations in the following form: Curvin v. Colvin, No. 13-3622, 2015 WL 542847 (7th Cir. Feb. 11, 2015). A straight database search on “778 F.3d 645” will not retrieve those cases. A database search on “2015 WL 542847” will retrieve those using the Westlaw cite (but not those employing the LEXIS equivalent “2015 U.S. App. LEXIS 2170” or the “F.3d” cite). A search on “13-3622” and “Curvin” will retrieve those including Curvin’s docket number but not those relying solely on a proprietary database cite or the ultimate “F.3d” cite.
Most case law databases purport to do this messy work for the researcher. With some Curvin’s rank in a set of search results may even be determined by how many citations to it there have been. What not all manage to do is to include those instances of citation that occurred so soon after Curvin’s release they could not refer to the case as “778 F.3d 645”. A review of how the major systems actually address this issue (or don’t) follows.
The dominance of Westlaw within the federal judiciary gives that system a clear advantage. So long as the early decisions cite the not-yet-published version of a case using its “WL” citation, Westlaw can employ that identifier to link them with those citing to the version later published in the company’s National Reporter System (NRS). But what about decisions written by federal judges who use LexisNexis and cite using its proprietary system? Senior Judge Donetta W. Ambrose of the Western District of Pennsylvania falls in this category. Had she relied on Curvin in late February or early March 2015, her opinion would almost certainly have cited it: Curvin v. Colvin, 2015 U.S. App. LEXIS 2170 (7th Cir. 2015). (See, for example, her decision in Nickens v. Colvin.) How would Westlaw have responded? It would have added a parallel “2015 WL 542847” to her Lexis cite, as it does to all opinion citations to “not yet published” or “never to be published” cases contained in the Westlaw database. That editorial step simplifies aggregation of all citations to a case prior its print publication. While Westlaw no longer displays the “WL” cite for decisions that have been given print citations in the National Reporter System, the service’s citation listings rest on its maintaining the association between preliminary “WL” cites and their subsequent NRS equivalents. This approach enables Westlaw’s listing of cases citing Curvin to include the early ones that did not use its F.3d volume and page number.
Lexis follows a similar strategy. Since most federal judges use Westlaw most of the early decisions citing Curvin used its Westlaw cite. See, e.g., Haire v. Colvin, No. 1:14-CV-00322-TAB-JMS (S.D. Ind. Feb. 20, 2015). On Lexis the cite to Curvin in Haire includes an added “U.S. App. LEXIS” cite. That enables the inclusion of Haire in the service’s dynamically generated list of decisions citing Curvin. It also facilitates another Lexis practice, the subsequent addition of parallel “F.3d” cites to decisions that did not, as written, include them.
Bloomberg has a “BL” citing scheme which it now deploys much like the Lexis cites, but with greater clarity. When a case in its database is cited by a later decision using only docket number and date or a Westlaw or Lexis cite, Bloomberg inserts a parallel “BL” cite. This editorial addition is, however, placed in square brackets, an acknowledgment that it was not part of the original text. Bloomberg Law has expanded Haire’s cite to Curvin written by the court as “Curvin v. Colvin, No. 13-3622, 2015 WL 542847, at *4, — F.3d —- (7th Cir. Feb. 11, 2015)” to “Curvin v. Colvin, No. 13-3622, [2015 BL 34654], 2015 U.S. App. LEXIS 2170 , 2015 WL 542847 , at *4, ___ F.3d ___ (7th Cir. Feb. 11, 2015)”. This practice appears relatively new. Decisions of an earlier vintage Bloomberg loaded as received without adding “BL” parallel cites. As a result decisions from that period are missed by Bloomberg’s linked retrieval of citing documents. (The fact that Bloomberg’s versions of decisions now also include the Lexis cite, without the square brackets, suggests a data sharing arrangement between the two companies.)
Judging at least from this sample of one, Bloomberg appears to add cases more rapidly than either Westlaw or Lexis. During the week of April 20th two more district court decisions citing Curvin were released. Both were in the Bloomberg database and listed as citing cases the following day.
The More Limited Approach of Google Scholar, Fastcase, and Casemaker
Google Scholar does not to attempt to track citing references for cases until they have received a permanent citation in the Thomson Reuters books. To date it does not have the NRS version of Curvin. When one clicks on the “How cited” link for the “slip” version of the case, one gets the message: “We could not determine how this case has been cited.” To find those cases a researcher must know to search on the party names and Curvin’s docket number or, alternatively, on its proprietary cites. The latter, of course, do not appear on Google Scholar or the public domain version of Curvin released by the Seventh Circuit and now (and forever?) available from the GPO’s Federal Digital System (FDsys). At some point Scholar will replace the original version of Curvin with that published by Thomson Reuters. Once it has, the decision’s “How cited” link will work, but it will not retrieve the early cases which did not cite Curvin by volume and page number because they could not. Researchers who know that can augment Google’s automatically generated list by doing the sort of searches suggested above.
Like Google Scholar both Casemaker and Fastcase limit their retrieval of citing cases to those that cite by means of NRS volume and page number, thereby missing the earliest references. Leavitt v. Cohen, No. 1:12-cv-1427-DKL-JMS (S.D. Ind. March 4, 2014) cited Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014), released less than a week before, using the format: Moore v. Colvin, ___ F.3d ___, 2014 WL 763223, *1(7th Cir. 2014). Since neither Fastcase nor Casemaker later fill in such blank “F.3d” citations or employ an enduring identifier for Moore (like the proprietary citation schemes of Bloomberg, Lexis, and Westlaw) neither includes Leavitt as a case citing Moore as those services do.
What about Newcomers like Ravel Law and Casetext?
Casetext does not yet have a fully developed method of indexing citing cases. It is designed to allow the ranking of search results by “Cite count” but while its database includes many more it lists only two cases as citing Moore.
Ravel has stronger incentive to solve the citator problem because its visualization of search results derives in significant part from citation links. However, to date Ravel’s cite count does not include case citations that pre-date the availability of the canonical NRS volume and page cite for a case. It counts only 70 cases as citing Moore v. Colvin. Those in its database not using that decision’s full “F.3d” cite do not make the list.
Citators and Never-to-be-Published Decisions
A 2013 “unpublished” Social Security decision of the Ninth Circuit illuminates this closely related citator issue. In Farias v. Colvin, No. 11-57088 (9th Cir. May 20, 2013), the court reversed a district court decision that had affirmed a denial of disability benefits. Its memorandum opinion faulted the Administrative Law Judge’s uncritical acceptance of testimony from a vocational expert. Being an unpublished memorandum opinion the Farias decision does not enjoy the status of precedent even within the courts that comprise the Ninth Circuit. Print-based Shepard’s would have ignored it.
On the other hand, unpublished decisions like Farias can be cited by counsel as persuasive authority. In fact, at least fifteen subsequent (unpublished) district court decisions refer to the Farias case. Because of the Thomson Reuters Federal Appendix reporter, Farias did in fact receive a print citation before 2013 was over, notwithstanding its “unpublished” designation, but not before being cited in at least two district court decisions. Thus, in one sense cases like it pose the same problem for citation compilers as those posed by cases eventually published in the Federal Reporter – a need to gather the earliest citations together with later ones expressed in terms of print volume and page numbers. However, the decision’s “unpublished” status and the dubious value of “Fed. Appx.” cites has led some case law services to stumble over providing useful citator results. The major three –Bloomberg, Lexis, and Westlaw – use their respective systems of proprietary citation to link Farias to the full spectrum of citing district court decisions. In contrast users of Google Scholar, Casemaker, and Fastcase are led to believe that Farias has not been cited unless they know enough to undertake a forward citation search on their own. And because some of the citing cases use the Farias decision’s “Fed. Appx.” cite and others don’t, some include the case docket number but most don’t, some use a proprietary database citation and others not, no single search other than one based simply on the case name (“Farias v. Colvin”) will retrieve them all.
One More Argument for Adoption of Court-Applied Systems of Citation
In jurisdictions that attach official citations to decisions at the time of release there is little difficulty generating a complete list of subsequent citing cases. Assuming that the court-attached citations are routinely used (whether or not in parallel with the National Reporter System or any other citation) a simple database search will retrieve all citing references. In 1999 the Oklahoma Supreme Court decided an influential case dealing with attorney malpractice liability. When released it carried the designation “1999 OK 79”. A search on that string, whether carried out directly by a researcher or automatically by software generating a citator list, should gather a comprehensive list of references to Manley v. Brown. That fact has enabled the Oklahoma State Courts Network database to append a list of citing cases to the decision in Manley. Although the case appears in the National Reporter System as “989 P.2d 448” a researcher or automated citator searching cases for references to Manley will not be thrown off by use of that print reference so long as it appears in parallel with the court-attached cite, as it does in all Oklahoma decisions and in a 2013 decision of the Illinois Appellate Court. Any citation search that relies solely on NRS citations for Oklahoma cases runs the risk of missing some.
Google Scholar’s case law collection has been an enormous boon to this country’s lawyers and all others puzzling over U.S. law. Not only does it provide free and direct access to a professional quality case database, but it enables legal commentary linked to governing precedent to reside outside a pay wall. Ironically, this breakthrough electronic research tool remains largely reliant on print source material. That is for many jurisdictions a direct consequence of the courts themselves being stuck in obsolete publication practices. But Scholar’s reliance on print holds even for states in which there is a more authoritative digital alternative. In the case of several state courts that have recently shifted to official online publication, Scholar persists in loading digitized versions of their decisions drawn from the pages of the Thomson Reuters National Reporter System (NRS). For at least one – Illinois – this is done without preserving the official citation information required in all submissions to that state’s courts.
Exhibit No. 1: Google Scholar’s Treatment of Illinois Decisions
In July 2011, less than two years after Google Scholar unveiled its case law database, Illinois began publishing the official versions of its appellate decisions online. Print publication of the Illinois Official Reports ceased. As a consequence the final and official version of the Illinois Supreme Court in Lake County Grading Co. v. Village of Antioch, 2014 IL 115805 (and all other binding decisions rendered by Illinois appellate courts since the switch) is available for anyone, including Google, to download from a public site. The text’s official status is indicated, and all that one needs to cite that decision to an Illinois court, in whole or in part, is contained in the electronic document. One could hope, one might expect, that Google Scholar would embrace and leverage this judicial reform. The change was, after all, prompted by many of the same goals that lie behind the Google initiative. Yet Scholar continues to digitize the print NRS version of this and other post-2011 Illinois decisions. Worse, while doing so it drops the medium neutral citations by which Illinois courts identify those decisions and require those invoking them to employ (“2014 IL 115805” in the case of Lake County Grading). Google’s practice appears to be to harvest Illinois decisions when first released in slip opinion form, to ignore the subsequent “official” electronic version, and ultimately to replace the slip opinion with a digitized copy of the NRS text. This final case report displays the volume number and page at which the decision is located within the NRS North Eastern Reporter as well as its internal pagination and paragraph numbers. But critically it omits the official medium-neutral case cite. For an example take a look at People v. Colyar, 2013 IL 111835. It can’t be said that Scholar completely ignores the new non-print Illinois citations, for it uses them to index decisions. As a result Colyar’s citation (“2013 IL 111835”) entered as a search will retrieve the case. The official cite also appears in Colyar’s listing when the decision is retrieved by a typical word search. The problem is that it remains absent from the opinion text when displayed on the screen, downloaded, or printed out.
Exhibit No. 2: New Mexico
New Mexico furnishes a second example of Google’s unfortunate print bias. Like Illinois, New Mexico ceased publishing official print reports in 2011. Since then the official version of any precedential New Mexico decision is contained in an electronic file retrievable without charge from the New Mexico Compilation Commission site. Zhao v. Montoya, 2014-NMSC-025 is one such case. Ignoring the change, Google Scholar has continued to draw its final text of the state’s appellate decisions from the NRS Pacific Reporter. However, probably because New Mexico began attaching neutral citations to decisions long before the Scholar case database was conceived or designed, Google’s print-based acquisition process has, from the start, extracted those official citations from the NRS reports and included them within each case. On the other hand, since Google Scholar relies on the Pacific Reporter for that information, decisions appear without their official citation until they have been published by Thomson Reuters and digitized by Google from that print source. Compare the official version of Wilkeson v. State Farm Mut. Auto. Ins. Co., 2014-NMCA-077, with that provided by Google Scholar.
Exhibit No. 3: Oklahoma
Scholar’s treatment of Oklahoma decisions demonstrates that this need not be so. The Oklahoma judiciary declared its online publication of appellate decisions official as of the beginning of 2014. As with the others this reform did not alter Google Scholar’s reliance on the NRS as the ultimate source of Oklahoma’s case law. Scholar continues to download Oklahoma decisions from the public site at the time of initial release, ignore the subsequent electronic versions designated as “official”, and replace the original files with digital copies of the texts once they appear in the Pacific Reporter. There is one important difference. Each decision’s medium neutral citation (e.g., “2013 OK CIV APP 105”) is displayed at the top from the beginning.
Exhibit No. 4: Arkansas
Official Arkansas case reports have been electronic since 2009. That same year the Arkansas Supreme Court erased the distinction between published and unpublished decisions. All decisions of the Arkansas Supreme Court and Court of Appeals now carry precedential weight. Faced with the resulting surge in the volume of citable Arkansas decisions, Thomson Reuters, refused to publish them all. Without guidance from the Arkansas courts, the company’s editors now select only a small percentage for print publication (less than 17% of the 2013 Court of Appeals decisions). Those that appear in S.W.3d are digitized by Google Scholar (complete with internal pagination) from that source and substituted for the prior court-distributed version. While Google’s digitization process retains the public domain case designations applied by the deciding court (e.g., “2013 Ark. App. 738”) it strips out another crucial citation element. Although the NRS version displays the page breaks that appear in the official electronic case report, Scholar leaves them out. For that reason its versions of Arkansas decisions, both those drawn from the official site and those based on the regional reporter, cannot be used to prepare pinpoint citations in the format called for by that state’s appellate rules.
Exhibit No. 5: Ohio
When the Ohio Supreme Court implemented a non-print citation system in 2002 it too removed the prior distinction between “published and unpublished” decisions. Ten years later it abandoned print publication of all decisions from the Ohio Court of Appeals. Since July 1, 2012 the official version of any decision of that court has been the authenticated electronic copy released by the Reporter of Decisions. During 2013 the court’s twelve districts issued over 5,200 such precedential opinions. Only 360 or so were selected by the NRS editors for publication in the North Eastern Reporter. As with Arkansas, Google Scholar loads the entire set of Court of Appeals decisions, later adding volume and page number cites to the indexing data for those decisions that appear in the regional reporter. It does not, however, display the NRS reporter citation as part of the opinion. As is true of the official cites in Illinois, these appear only as part of the listing of results delivered in response to a search. Thus while a search on “992 N.E.2d 453” will retrieve State v. Venes, 2013 Ohio 1891 (Ct. App. 8th Dist.), that NRS citation does not appear within the opinion nor does Scholar show the NRS pagination.
Google Scholar’s Treatment of the Official Print Reports of California, Massachusetts, and New York Demonstrates that It Can Do Better
The Ohio example reveals that Google’s reliance on the Thomson Reuters reports does not reflect its approach to all U.S. jurisdictions, cost-effective though that might be. After all, economy and efficiency might well argue for acquiring all case data from that single source. Ohio does not stand alone. In the case of several states that still publish their own law reports in print (or contracting for their publication) Google digitizes those reports rather than their NRS counterparts.
California, Massachusetts, and New York are among those “official report” states. Importantly, these three employ distinct formats for internal citations. To illustrate, as published in New York’s official reports, the New York Court of Appeals decision in De La Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530 (2013), cites a prior decision of the court as follows: “Brukhman v Giuliani (94 NY2d 387 )”. In the Thomson Reuters editions the citation to Brukhman v. Giuliani becomes: “Brukhman v. Giuliani, 94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)”. As detailed in a prior post, such citation format differences make it easy to detect whether the decision texts for the jurisdiction have been drawn from its official reports or from the proprietary NRS.
Applied to Google Scholar this analysis establishes that it currently draws New York case data from the official reports. Have a look at its version of De La Cruz. Although the volume and page numbers at which that decision appears in the North Eastern Reporter and New York Supplement have been added so that users can extract a parallel cite, the format of the citations contained within Scholar’s version of De La Cruz decision, as well as the page breaks shown within the text, reveal the version to be a digital copy of the official report. Similar citation analysis reveals that Google Scholar also relies on California and Massachusetts official reports for decisions from those states. In other words, Google’s data acquisition process does not rest exclusively or consistently on the Thomson Reuters reports.
Drawing on the official reports of California, New York, and Massachusetts necessitates digitizing print. But with states like Illinois and the others that have moved to official electronic distribution this is unnecessary. Transposed to them, using the official version of decisions would avoid that costly process and require only two or three steps:
- Loading opinions as first released, include all citation data embedded in them (case cites, paragraph numbers, or when necessary, as with Arkansas, internal pagination). Google currently accomplishes this with Oklahoma and Ohio, but fails to do so for Arkansas, Illinois, or New Mexico.
- Second, if decisions are initially released in a preliminary or slip form, substituting their final, official versions, once available, again, retaining all citation data. Patently, Google follows this pattern in New York, California, and Massachusetts where that final, official version is brought out in print.
- Finally, adding a parallel National Reporter System volume and page number cite to the official medium neutral citation once it becomes available. Google’s process for decisions from New Mexico and Oklahoma, not to speak of the print publication states, New York, California, and Massachusetts, demonstrates that its data systems are capable of this step.
One can hope for the day when all U.S. courts publish their official reports electronically, allowing the full range of legal research services to redistribute final, official, citable copies, adding diverse levels and types of editorial enhancement, including their own citation schemes. Jurisdictions weighing a shift toward that future ought to be encouraged. More respectful recognition of the measures taken by states that have already gone digital is an essential first step. Google Scholar, the dominant free source of U.S. case law, ought to lead the way.
A recent post on the Legal Writing Prof Blog draws attention to Westlaw’s copy-with-reference feature. Its author raises a concern that the option to have citations formatted in the ALWD style still yields citations conformed to that manual’s fourth edition rather than the fifth edition, published earlier this year. Since ALWD’s new version adheres to The Bluebook’s citation style in nearly all particulars, that problem is easily solved: The Westlaw folks need simply to remove the ALWD option. However, those engaged in teaching legal writing and introducing law students to citation need to be attentive to numerous other imperfections in this WestlawNext feature and its LexisAdvance analog, as well as in the citations generated by other research services those 1Ls may employ once in practice.
To begin, although the blogger writes of there being a Bluebook option, that label does not appear among the citation format options of either major service. The default citation style offered by both Westlaw and Lexis is denominated “Standard”. Is that due to trademark concerns? For reasons set out in an earlier post, I doubt it. The truth is that neither system consistently produces Bluebook compliant citations across the several types of authority and to suggest otherwise would be misleading. “Standard” doesn’t make such a claim, although it appears it may lead legal writing teachers and their students, not to speak of lawyers and other online researchers, to believe that is the case.
One other point made in that short post arouses concern. Its author observes that because of this new and amazing feature “I can spend a little less time teaching citation format.” For reasons explained in the latest version of Basic Legal Citation, I view that as a mistake. Let me point out a few reasons why a researcher who wants to employ Bluebook (or ALWD) conforming citations in a brief or memorandum will have to know enough to add, subtract, or modify those delivered by either Westlaw or Lexis.
As pointed out in an earlier post, a major attraction of any copy-with-reference function is that the case name segment of the citations it delivers will have been shrunk through the dropping and abbreviating of certain words. Per The Bluebook a decision rendered in the matter of
Edward Mann and Holly Mann, Plaintiffs-Appellees, v. LaSalle National Bank, as Trustee under Trust Agreement dated March 22, 1960, and known as Trust No. 24184; Ellenora Kelly; John J. Waters; Irene Breen, as Trustee under Provisions of the Trust Agreement dated January 31, 1973, and known as Trust No. 841; Unknown Beneficiaries of Trust Agreement dated January 31, 1973, and known as Trust No. 841; and Unknown Owners, Defendants-Appellants
is reduced to “Mann v. LaSalle Nat’l Bank”. Westlaw’s “Standard” format citation for the case is a close though not identical “Mann v. LaSalle Nat. Bank”. Not The Bluebook’s “Nat’l” nor the “Natl.” favored by earlier editions of the ALWD manual and Bloomberg Law but “Nat.”, the abbreviation long employed by West Publishing Company.
Illinois has its own style manual. It contains a very short list of names that are to be abbreviated in case names. “National” is not one of them. Consequently, citations to Mann by Illinois courts present the case name as “Mann v. LaSalle National Bank”. One might expect that since Westlaw’s copy-with-reference offers an “Illinois” option choosing it would yield that result. It doesn’t; the case name for this decision still comes out as “Mann v. LaSalle Nat. Bank”. LexisAdvance also offers a choice between “Standard” and “Illinois” style citations when copying passages from Mann. As with Westlaw they render the case name identically. But in compliance with The Bluebook, Lexis abbreviates “National” as “Nat’l”.
A big deal? Grounds for choosing Lexis over Westlaw? Hardly. I know of no instance of an attorney being chastised by a court for using non-Bluebook abbreviations and have argued that consistent use of those delivered by the writer’s online source ought to be a totally acceptable approach in professional practice. With their tight attachment to The Bluebook, law journal editors are likely to disagree.
The bigger deal is how Westlaw and Lexis treat the balance of a case citation, particularly if the jurisdiction has, like Illinois, adopted a system of non-print-based citation. Take the recent case of Brandhorst v. Johnson. In decisions of Illinois courts and briefs submitted to them a reference to a particular passage of that case in the form ”Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 57” would be complete. The Bluebook insists that a reference to the National Reporter System (“12 N.E.3d 198, 210” in the case of that passage of Brandhorst) be included in parallel. When the paragraph in question is copied from WestlawNext with its citation in “Standard” format the paragraph number is not included in the cite. (LexisAdvance includes it.) Westlaw does not include the parallel N.E.3d cite in either the “Standard” or “Illinois” style citations for the case. Lexis includes it and adhering to The Bluebook includes a pinpoint page reference. However, Lexis departs from The Bluebook by throwing in the totally unnecessary “382 Ill. Dec. 198, 206” when the “Standard” format is chosen. Westlaw’s “Illinois” style citation for the case adds the parenthetical “(Ill. App. Ct. 4th Dist. June 11, 2014)” which none of the style manuals calls for. The Illinois style guide explicitly states that there is no need for a citation to identify the appellate district “unless that information is of particular relevance to the discussion”. (Moreover, since the district number is part of the jurisdiction’s public domain citation system, with any recent case like Brandhorst its repetition in a parenthetical wastes space.) In sum, neither Westlaw nor Lexis delivers a Bluebook cite for this case. Neither delivers an “Illinois” format citation that conforms to the state’s style guide. Users who would conform their writing to either of those citation standards need to modify or add to what those online systems serve up programmatically along with a copied passage.
2. Statutes (and regulations)
A provision of the Social Security Act with considerable contemporary relevance is to be found in 42 U.S.C. § 416(h)(1)(A)(ii). Copy its language with citation from Westlaw and what you get is “42 U.S.C.A. § 416 (West)”. Lexis renders its citation as “42 USCS § 416”. Neither service is prepared to yield its branded designation of the U.S. Code to the conventionally used generic or official format. Neither includes a date or other indication of the currency of the compilation The Bluebook calls for. And critically, neither provides the absolutely essential subsection and paragraph identifiers that specify the portion of 42 U.S.C. § 416 one is copying. The blocked text may include “(ii)” but that alone is not enough. The same failure to reach below the section level holds with citations to regulations.
At their current stage of evolution none of the major research services (including not only Westlaw and Lexis, but Bloomberg Law, Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully comply with The Bluebook or, indeed, any of the other citation styles they may list. In any setting where citation format is critical, users need to know that. And all researchers need to be aware that the citations of statutes or regulations these systems generate will often be seriously incomplete.
The latest edition of Introduction to Basic Legal Citation is now online at: http://www.law.cornell.edu/citation/ with conformed ebook versions at: http://access-to-law.com/citation/. For those wanting the convenience of a direct download to a Kindle or Kindle app, the updated work is also available through the Kindle store (for $.99, the minimum Amazon will allow).
Changes in the 5th edition of the ALWD guide, published this past spring, compelled substantial revision. In addition, this 2014 edition expands the coverage of state rules that deal with both citation and quotation of primary legal materials in court filings. By specific request, rules specifying the content and organization of a brief’s table of authorities are now included.
Importantly, this latest edition also notes the first traces of citation rules that reflect the desire of courts receiving electronic filings to have their references to the case record structured so that they can be linked directly to the cited portion in their document management system.
As was true last year, the revision process uncovered a number of citation policy issues that warrant discussion here.
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).
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.
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.
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.
In a prior post I reported on the erasure of all prior differences between the citation style set forth in the ALWD Guide to Legal Citation and that prescribed by the work entitled “The Bluebook: A Uniform System of Citation.” Here my focus is on trademark and copyright issues that bear on the competition between these two citation manuals and influence how other works, print and electronic, address issues of legal citation.
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).
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.
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.
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.
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.