Archive for the ‘Official’ Category

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

Monday, January 9th, 2017

I. Introduction

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

II. The Constitutional, Statutory, and Contractual Framework

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

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

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

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

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

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

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

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

man doing legal research on computer    

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

   

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

  

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

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

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

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

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

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

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

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

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

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

VI. No Small Challenge, but Substantial Potential Gains

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

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

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

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

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

Better Never than So Very Late?

Thursday, September 22nd, 2016

The Supreme Court – Opening a New Term in Serious Arrears

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

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

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

Adopt a Similar Pace

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

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

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

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

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

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

Ignore and Keep Moving

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

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

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

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

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

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

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

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

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

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

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

Dealing with the Deep Backlog of Skeletal Citations

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

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

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

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

A Need to Take Electronic Publication More Seriously

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

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

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

Would Congressional Action Be Required?

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

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

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

 

Lessons the Federal Courts Might Learn from Westlaw’s Prolonged Data Processing Error

Friday, May 6th, 2016

The Thomson Reuters Errata Notice

On April 15, 2016 Thomson Reuters notified subscribers to its online and print case law services that a significant number of U.S. decisions it had published since November 2014 contained errors.

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Here and there words had been dropped.  The company explained that the errors had been introduced by software run on the electronic texts it collected from the authoring courts.  Thomson posted a list of the affected cases.  The initial list contained some 600 casesA week later it had grown to over 2,500 through the addition of cases loaded on Westlaw but not published in the National Reporter Service (NRS).  Two weeks out the list included links to corrected versions of the affected cases with the restored language highlighted.  The process of making the corrections led Thomson to revise the number of casualties downward (See the list’s entry for U.S. v. Ganias, for example.), but only slightly.

Thomson Reuters sought to minimize the importance of this event, asserting that none of the errors “changed the meaning of the law in the case.”  Commendably, Thomson apologized, acknowledging and detailing the errata.  It spun its handling of the processing error’s discovery as a demonstration of the company’s commitment to transparency.  On closer analysis the episode reveals major defects in the current system for disseminating federal case law (and the case law of those states that, like the lower federal courts, leave key elements of the process to Thomson Reuters).

Failure to View Case Law Publication as a Public Function

Neither the U.S. Courts of Appeals nor the U.S. District Courts have an “official publisher.”  No reporter’s office or similar public agency produces and stamps its seal on consistently formatted, final, citable versions of the judicial opinions rendered by those courts in the way the Reporter of Decisions of the U.S. Supreme Court does for the nation’s highest court.  By default, cemented in by over a century of market dominance and professional practice, that job has fallen to a single commercial firm (originally the West Publishing Company, now by acquisition and merger Thomson Reuters) to gather and publish the decisions of those courts in canonical form.  Although that situation arose during the years in which print was the sole or principal medium of distribution, it has carried over into the digital era.  Failure of the federal judiciary to adopt and implement a system of non-proprietary, medium-neutral citation has allowed it to happen.

With varying degrees of effectiveness, individual court web sites do as they were mandated by Congress in the E-Government Act of 2002.  They provide electronic access to the court’s decisions as they are released.  The online decision files, spread across over one hundred sites, present opinion texts in a diversity of formats.  Crucially, all lack the citation data needed by any legal professional wishing to refer to a particular opinion or passage within it.  Nearly twenty years ago the American Bar Association called upon the nation’s courts to assume the task of assigning citations.  By now the judiciaries in close to one-third of the states have done so.  The federal courts have not.

Major Failings of the Federal Courts’ Existing Approach

Delivery of Decisions with PDF Pagination to Systems that Must Remove It

Several states, including a number that produce large volumes of appellate decisions, placed no cases on the Thomson Reuters errata list.  Conspicuous by their absence, for example, are decisions from the courts of California and New York.  The company’s identification of the software bug combined with inspection of the corrected documents explains why.  Wrote Thomson it all began with an “upgrade to our PDF conversion process.”

The lower federal courts, like those of many states, release their decisions to Thomson Reuters, other redistributors, and the public as PDF files.  The page breaks in these “slip opinion” PDFs have absolutely no enduring value.  Thomson (like Lexis, Bloomberg Law, Casemaker, FastCase, Google Scholar, Ravel Law, and the rest) must remove opinion texts from this electronic delivery package and pull together paragraphs and footnotes that straddle PDF pages.  All the words dropped by Thomson’s “PDF conversion process” were proximate to slip opinion page breaks.  Why are there no California and New York cases on list?  Those states release appellate decisions in less rigid document formats.  California decisions are available in Microsoft Word format as well as PDF.  The New York Law Reporting Bureau releases decisions in htmlSo does Oklahoma; no Oklahoma decisions appear on the Thomson errata list.

Failure to Employ One Consistent Format

The lower federal courts compound the PDF extraction challenge by employing no single consistent format.  Leaving individual judges of the ninety-four district courts to one side, the U.S. Courts of Appeals inflict a range of remarkably different styles on those commercial entities and non-profits that must process their decisions so that they will scroll and present text, footnotes, and interior divisions on the screens of computers, tablets, and phones with reasonable efficiency and consistency.  The Second Circuit’s format features double-spaced texts, numbered lines, and bifurcated footnotes; the Seventh Circuit’s has single-spaced lines, unnumbered, with very few footnotes (none in opinions by Judge Posner).

In contrast the decisions released by the Michigan Supreme Court, although embedded in PDF, reflect a cleanly consistent template.  The same is true of those coming from the supreme courts of Florida, Texas, and Wisconsin.  Decisions from these states do not appear on the Thomson list.

Lack of a Readily Accessible, Authenticated Archive of the Official Version

By its own account it took Thomson Reuters over a year to discover this data processing problem.  With human proofreaders it would not have taken so long.  Patently, they are no longer part of the company’s publication process.  Some of the omitted words would have been invisible to anyone or any software not performing a word-for-word comparison between the decision released by the court and the Westlaw/National Reporter Service version.  Dropping “So ordered” from the end of an opinion or the word “Plaintiff” prior to the party’s name at its beginning fall in this category.  However, the vast majority of the omissions rendered the affected sentence or sentences unintelligible.  At least one removed part of a web site URLOthers dropped citations.  In the case of a number of state courts, a reader perplexed by a commercial service’s version of a decision can readily retrieve an official copy of the opinion text from a public site and compare its language.  That is true, for example, in Illinois.  Anyone reading the 2015 Illinois Supreme Court decision in People v. Smith on Westlaw puzzled by the sentence “¶ 3 The defendant, Mickey D. Smith, was charged in a three-count indictment lawful justification and with intent to cause great bodily harm, shot White in the back with a handgun thereby causing his death.” could have pulled the original, official opinion from the judiciary web site simply by employing a Google search and the decision’s court attached citation (2015 IL 116572), scrolled directly to paragraph 3, and discovered the Westlaw error.  The same holds for the other six published Illinois decisions on the Thomson list.  Since New Mexico also posts final, official versions of its decisions outfitted with public domain citations, it, too, provides a straightforward way for users of Westlaw or any other commercial service to check the accuracy of dubious case data.

The growing digital repository of federal court decisions on the GPO’s FDsys site falls short of the standard set by these state examples.  To begin, it is seriously incomplete.  Over fifty of the entries on the Thomson Reuters list are decisions from the Southern District of New York, a court not yet included in FDsys.  Moreover, since the federal courts employ no system of court applied citation, there is no simple way to retrieve a specific decision from FDsys or to move directly to a puzzling passage within it.  With an unusual party name or docket number the FDsys search utility may prove effective but with a case name like “U.S. v. White” retrieval is a challenge.  A unique citation would make the process far less cumbersome.  However, since the lower federal courts rely on Thomson Reuters to attach enduring citations to their cases (in the form of volume and page numbers in its commercial publications) the texts flow into FDsys without them.

The Ripple of the Thomson Reuters Errors into Other Database Systems

Because the federal courts have allowed the citation data assigned by Thomson Reuters, including the location of interior page breaks, to remain the de facto citation standard for U.S. lawyers and judges, all other publishers are compelled in some degree to draw upon the National Reporter System.  They cannot simply work from the texts released by their deciding courts, but must, once a case has received Thomson editorial treatment and citation assignment, secure at least some of what Thomson has added.  That introduces both unnecessary expense and a second point of data vulnerability to case law dissemination.  Possible approaches range from: (a) extracting only the volume and pagination from the Thomson reports (print or electronic) and inserting that data in the version of the decision released by the court to (b) replacing the court’s original version with a full digital copy of the NRS version.  Whether the other publisher acquires the Thomson Reuters data in electronic form under license or by redigitizing the NRS print reports, the second approach will inevitably pick up errors injected by Thomson Reuters editors and software.  For that reason the recent episode illuminates how the various online research services assemble case data.

Services Unaffected by the Thomson Reuters Glitch

Lexis was not affected by the Thomson Reuters errors because it does not draw decision texts from the National Reporter System.  (That is not to say that Lexis is not capable of committing similar processing errors of its own.  See the first paragraph in the Lexis version of U.S. Ravensberg, 776 f.3d 587 (7th Cir. 2015).)   So that Lexis subscribers can cite opinions using the volume and page numbers assigned by Thomson, Lexis extracts them from the NRS reports and inserts them in the original text.  In other respects, however, it does not conform decision data to that found in Westlaw.  As explained elsewhere its approach is revealed in how the service treats cases that contain internal cross-references.  In the federal courts and other jurisdictions still using print-based citation, a dissenting judge referring to a portion of the majority opinion must use “slip opinion” pagination.  Later when published by Thomson Reuters these “ante at” references are converted by the company’s editors, software, or some combination of the two to the pagination of the volume in which the case appears.  Search recent U.S. Court of Appeals decision on Lexis on the phrase “ante at” and you will discover that in its system they remain in their original “slip opinion” form.  For a single example, compare Judge Garza’s dissenting opinion in In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014) as it appears on Lexis with the version on Westlaw or in the pages of the Federal Reporter.

Bloomberg Law appears to draw more extensively on the NRS version of a decision.  Its version of the Garza dissent in In re Deepwater Horizon expresses the cross references in Federal Reporter pagination.  However, like Lexis it does not replace the original “slip opinions” with the versions appearing in the pages of the Federal Reporter.  Examination of a sample of the cases Thomson Reuters has identified as flawed finds that Bloomberg Law, like Lexis, has the dropped language.  Casemaker does as well.

Services that Copy Directly from Thomson’s Reports, Errors and All

In contrast, Fastcase, Google Scholar, and Ravel Law all appear to replace “slip opinions” with digitized texts drawn from the National Reporter System.  As a consequence when Thomson Reuters drops words or makes other changes in an original opinion text so do they.  The Westlaw errors are still to be found in the case data of these other services.

Might FDsys Provide a Solution?

fdsys

Since 2011 decisions from a growing number of federal courts have been collected, authenticated, and digitally stored in their original format as part of the GPO’s FDsys program.  As noted earlier that data gathering is still seriously incomplete.  Furthermore, the GPO role is currently limited to authenticating decision files and adding a very modest set of metadata.  Adding decision identifiers designed to facilitate retrieval of individual cases, ideally designations consistent with emerging norms of medium-neutral citation, would be an enormously useful extension of that role.  So would be the assignment of paragraph numbers throughout decision texts, but regrettably that task properly belongs at the source.  It is time for the Judicial Conference of the United States to revisit vendor and medium neutral citation.