Judges Revising Opinions after Their Release

April 29th, 2014

A. Background: How legislatures and agencies handle revision

1. Revision by Congress

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

tech_correction

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

2. Agency typos and omissions

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

revised_reg

B. Judicial opinions – An altogether different story

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

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

 erratum

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

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

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

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

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

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

sct_revision

More disturbing, by far, are:

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

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

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

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

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

1. Minimize or eliminate post-release revision

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

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

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

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

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

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

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

 

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

April 8th, 2014

A. Introduction

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

Brief Page

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

B. Electronic briefs and memoranda filed with federal courts

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

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

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

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

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

C. E-filing in Texas and other states

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

D. The implications for citation placement

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

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

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

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

E. Judge for yourself

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

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

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

From a current, high profile case:

F. Deeper issues raised by citations that are links

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

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

March 28th, 2014

A. A Revived Debate

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

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

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

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

2. Treatment of citation footnotes by most legal research services

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

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

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

Hughes Case

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

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

Harris Case on Lexis

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

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

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

 

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

February 27th, 2014

1. Truncating and Abbreviating Case Names

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

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

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

2. Stripping Off Excess

US_title

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

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

And so on.

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

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

4. The Bluebook’s Limited Influence on This Point

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

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

5. The Supreme Court’s Approach

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

6. Fifty States, Diverse Styles

A. New York Style

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

B. Massachusetts and Illinois

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

C. Michigan

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

D. Oregon and California

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

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

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

A. Be Consistent

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

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

B. Routinize the Process

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

lexisadv

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

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

 

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

February 13th, 2014

1. “Official” Digital Case Law

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

official1

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

2. Implications for Citation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Official Digital Case Law and Authentication

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

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

official2   official3

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

Annotated Bibliography on Neutral Citation and Standardized Markup

February 10th, 2014

A version 2 of the background document for the effort now underway at OASIS (see prior posts dated Nov. 1, 2013 and Jan. 15, 2014) provides a very useful bibliography on “neutral citation of court cases, statutes, and regulations.”  It, in turn, has drawn comment from F. Tim Knight on Slaw.

Costs of the (Increasingly) Lengthy Path to U.S. Report Pagination

January 27th, 2014

On May 17, 2010, the U.S. Supreme Court decided United States v. Comstock, holding that Congress had power under the Necessary and Proper Clause of the U.S. Constitution to authorize civil commitment of a mentally ill, sexually dangerous federal prisoner beyond his release date. (18 U.S.C. § 4248).  Three and a half years later, the Court communicated the Comstock decision’s citation pagination with the shipment of the “preliminary print” of Part 1 of volume 560 of the United States Reports. That paperbound publication was logged into the Cornell Law Library on January 3 of this year.  (According to the Court’s web site the final bound volume shouldn’t be expected for another year.) United States v. Comstock, appears in that volume at page 126, allowing the full case finally to be cited: United States v. Comstock, 560 U.S. 126 (2010) and specific portions of the majority, concurring and dissenting opinions to be cited by means of official page numbers.

U.S. Reports

This lag between opinion release and attachment of official volume and page numbers along the slow march to a final bound volume has grown in recent years, most likely as a result of tighter budgets at the Court and the Government Printing Office.  Less than two years separated the end of the Court’s term in 2001 and our library’s receipt of the bound volume containing its last decisions. By 2006, five years later, the gap had widened to a full three years. Volume 554 containing the last decisions from the term ending in 2008 didn’t arrive until July 9 of last year. That amounts to nearly five years of delay.

If the printed volumes of the Court’s decisions served solely an archival function, this increasingly tardy path to print would warrant little concern or comment. But because the Court provides no means other than volume and page numbers to cite its decisions and their constituent parts, the increasing delays cast a widening ripple of costs on the federal judiciary, the services that distribute case law, and the many who need to cite it.

The nature of those costs can be illustrated using the Comstock case itself.

The Need for Some Alternative Citation System to Use over the Lengthy Interim

As released the Court’s slip opinions do not provide the information necessary to meet current citation norms. For the period they carry Supreme Court decisions lacking official volume and page numbers legal database providers must, therefore, decide whether to employ a proprietary citation scheme of their own and further which of the dominant, competing unofficial volume and page number systems (S. Ct., L. Ed. 2d) to insert as slip opinion identifying numbers and divisions. Since neither of the latter are instantly available, their use requires later editorial intervention. None of these alternatives is without costs.

Incomplete and Temporary References in the Original Opinion Texts, Requiring Later Revision

In the original 2010 Comstock text (at page 20 of the slip opinion) Justice Breyer, writing for the majority, refers to a dissent by Justice Thomas, as follows:

Indeed even the dissent acknowledges that Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power, and also the additional power to imprison people who violate those (inferentially authorized) laws, and the additional power to provide for the safe and reasonable management of those prisons, and the additional power to regulate the prisoners’ behavior even after their release. See post, at 12-13, 17, n. 11.

The Thomas dissent cites a 2008 decision of the Court but had to do so in the following form because it had not yet, in 2010, appeared with official report pagination:

To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. See, e.g., Kennedy v. Louisiana, 554 U. S. ___, ___, n.2, (2008) (ALITO, J., dissenting) (slip op., at 9, n. 2, 22–23).

In the preliminary print volume Justice Breyer’s cross-reference reads: “See post, at 169, 170, 173-174, n. 12.” Note not only that it now lists three rather than two sets of pages but also that “n. 11” has become “n. 12”.  Comparing the slip opinion and preliminary print, it seems evident the Court’s reporter of decisions was helped to see how, more precisely, the slip opinion page references mapped to the later version’s pagination and that the original footnote cross reference was off by one. (Although such changes have been known to occur, Justice Thomas did not add a footnote in the interim.) The citation in Justice Thomas’s dissent has been filled in and the parenthetical slip opinion references removed: “See, e.g., Kennedy v. Louisiana, 554 U. S. 407, 455, n.2, 468-469 (2008) (ALITO, J., dissenting).”

In short, because the Comstock decision, itself, and the Kennedy decision cited by Justice Thomas lacked permanent citation data in 2010, its text carried temporary and incomplete references that later had to be interpreted and filled in by the Court’s Reporter of Decisions (Frank D. Wagner through 2010, since 2011, Christine Luchok Fallon). That, however, is only the beginning of a cascade of revisions that must follow.

Database Services Must Detect, Extract, and Insert the Later Changes

All redistributors of the Court’s decisions must merge these and any other changes in the Comstock opinions into online versions that have been in place since spring 2010 – a costly process and one that injects risk of error. Strangely, the Court’s web site seems oblivious to the problem for it does not offer preliminary print versions of the United States Reports in electronic format. Consequently, legal database providers that care about conforming Supreme Court decisions to the official reports at this point must work from print. Their only alternative is to wait another year or so for release of the final bound edition which the Court does offer in digital format. (The most recent bound volume, received by the Cornell Law Library five years after the date of its contents, is the one holding the2008 Kennedy case cited by Justice Thomas. It is available for download at the Court web site.)

As of today, less than a month after the availability of Comstock in preliminary print form, what have the major online services done with its updated content?

Westlaw’s editors have inserted the official report page breaks in that service’s version of Comstock, but have failed to conform Justice Breyer’s cross reference. In Westlaw, as in the “Interim Edition” of the Supreme Court Reporter, his reference tracks the original, with the pagination converted to that in the company’s print reporter. It still points to “n. 11”. Justice Thomas’s citation to Kennedy v. Louisiana, has the jump cite pages in the official report blank, augmented by complete parallel references to the Supreme Court Reporter.

Lexis has caught the change in the footnote referenced by Breyer and substituted the official report pagination for that used in the slip opinion, placing the cross-reference pagination of its Lawyers’ Edition reporter in parallel.  It has also filled in the blanks in Thomas’s citation of Kennedy, placing Lawyers’ Edition pages in parallel but it has missed the additional page range appearing in his citation that was not signaled in the original by a blank (“468-469”).

Bloomberg Law has inserted the official report page breaks but the cross reference remains exactly as it was in the slip opinion, complete with the now useless slip opinion pagination. The Thomas citation also stands exactly as it was, providing no page numbers in 554 U.S.

Loislaw has added the new official cite to the Comstock slip opinion, enabling retrieval by cite alone but has not added page breaks or conformed the text in other ways.

Casemaker has not added the official cite so the case must be retrieved by name or by use of the Supreme Court Reporter cite. The case carries Supreme Court Reporter page breaks and is in other respects conformed to the Thomson Reuters edition.

Fastcase holds the case in slip opinion form, with slip opinion pagination, but it can be retrieved using the Supreme Court Reporter cite.

Google Scholar like Casemaker conforms to the Supreme Court Reporter and does not yet reflect the availability of the official version or its cite.

The Multiplier Effect: Other Cases

This is only the beginning of the cascade, for during the three and a half years separating Comstock’s release and its acquiring an official cite the decision was cited (necessarily in some incomplete or unofficial fashion) by hundreds of lower courts. Shepards (Lexis) shows 191 entries on Comstock’s subsequent appellate history, 231 other citing decisions, and 441 citing references in law reviews and treatises. Legal database providers must decide which of these references to edit to include the Supreme Court’s decision’s official citation and how, if at all, to translate any pinpoint references into official pagination.

A Citation System that Avoids These Costs

How much simpler it would be for those of us who work with case law and less costly for the services on which we rely if the U.S. Supreme Court were to release its decisions in final and citable form rather than allowing a three to four year lag between release and the near final preliminary print.

Illinois appellate decisions (as well as those of several other states) demonstrate the comparative advantages of such an approach.

Less than a year ago, on March 21, 2013, the Illinois Supreme Court released People v. Cruz, 2013 IL 113399. One of several intermediate appellate court decisions to cite Cruz decided in the months immediately following was handed down only eight days later, People v. Cage, 2013 IL App (2d) 111264. Because Illinois decisions have, since 2011, been released with full official citation information the Cage references could be both complete and final:

¶ 15 We find support for our determination in our supreme court’s recent decision in People v. Cruz, 2013 IL 113399, 985 N.E.2d 1014, 369 Ill. Dec. 28. In Cruz, the defendant filed a petition seeking relief under the Act. The case proceeded to the second stage, and the State moved to dismiss, arguing, inter alia, untimeliness; the trial court granted the State’s dismissal motion. Id. ¶¶ 8, 15. The defendant appealed, and the State argued for the first time that the trial court’s dismissal should be affirmed because the defendant failed to attach a notarized affidavit to his pro se supplemental petition alleging a lack of culpable negligence. Id. ¶ 16. The appellate court agreed with the State, concluding that, “‘because [the defendant] filed no notarized affidavit to support the allegations of cause for the delayed filing, the trial court properly dismissed the postconviction petition.’ [Citation.]” Id.

Under the Illinois citation scheme, cross-references between opinions in a case can also be complete and in final form without a need to wait months or years to see what volume or page numbers have been assigned to the passages in question. Footnotes 1 and 2 in the majority opinion of Chicago Teachers Union v. Board of Education, 2012 IL 112566, illustrate:

1. The dissent appears to assign pretextual motives to the Board’s economic layoff of tenured teachers. Infra ¶ 41 (Theis, J., dissenting, joined by Kilbride, C.J.). However, it is undisputed that the layoffs in this case were based on nonpretextual economic reasons.

2. The dissent acknowledges this statutory distinction (infra ¶ 45 (Theis, J. dissenting, joined by Kilbride, C.J.)), yet fails to recognize its legal significance in construing these statutes.

Legal information providers can load Illinois decisions “as is”. When they later receive volume and page numbering in unofficial reports (notably N.E.2d of the Thomson Reuters National Reporter System) they can, but need not, merge the resulting case cites and page breaks into the official versions.

Conclusion

At a time when few researchers rely on print reports, the Supreme Court’s continued dependence on a set of print volumes, produced long after the fact, for a case’s official cite (and final text) is a costly anachronism. The growing lag in production of those volumes cannot be excused by the existence of many electronic sources. Indeed, their number and importance in legal research increase the ultimate burden of the delay.

Finally, there is an indeterminate hidden cost. So long as years separate initial slip opinions from their final official versions, justices face a troubling temptation to continue fiddling with their texts. One trusts that a desire to have a lengthy period for revision is not the cause of the recent increase in delay, but that delay does inevitably invite authorial “improvement”.

 

Citation as DNA

January 22nd, 2014

In a guest post this week on Justia’s Verdict blog, I explain how one can use citation format to determine a legal information service’s data source for case law and report on the results of such an investigation.

OASIS Legal Citation Markup Technical Committee

January 15th, 2014

The proposed OASIS Legal Citation Markup (LegalCiteM) Technical Committee reported in an earlier post has now been chartered and has issued a call for participation. The committee’s first meeting will be held on Feb. 12, via teleconference.

Case citation and the proposed “Edicts of Government” amendment to the Copyright Act

January 15th, 2014

Yesterday, Carl Malamud testified before Congress on behalf of an amendment to the U.S. Copyright Act that would codify the following exception to its coverage:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

The language is drawn directly from a 1984 publication of the U.S. Copyright Office, which has been under revision for over two years. As Malamud explained, the legal position it expresses traces back to two nineteenth century Supreme Court decisions, Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888), is grounded in Constitutional values, and despite the absence of explicit expression in the current Copyright Act has continued to be affirmed by twenty-first century rulings. See Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002).

The case he presented to Congress cited the experience his non-profit, Public.resource.org, has had with states’ claiming copyright in their codified statutes (the subject of a prior post). The principal target of his testimony and the proposed amendment, however, are copyright claims asserted by standards development bodies in the safety and other codes that are, as intended, adopted as law by state and federal governments. Testifying in opposition to the proposed amendment was the vice president and general counsel of the American National Standards Institute.

Malamud’s testimony made no mention of his organization’s past work with case law and the cloud of copyright uncertainty overhanging law reports. Nor would his proposed amendment resolve a copyright issue that has been a major source of that uncertainty for nearly three decades.

The issue first arose in 1985 when Lexis announced its intention to add volume and page numbers drawn from the National Reporter System of the then West Publishing Company to its database of federal and state judicial opinions, not merely the page numbers on which decisions began but the page-breaks within them necessary for pinpoint citation (“star pagination”). West sought and was granted a preliminary injunction on the ground that while the decisions issued by courts were in the public domain the selection and arrangement of them in West’s books as expressed in volume and page numbers qualified for a compilation copyright. West Pub. Co. v. Mead Data Cent., Inc., 616 F. Supp. 1571 (D. Minn. 1985), aff’d 799 F.2d 1219 (8th Cir. 1986). Three years later, the litigation was settled in an agreement that allowed Lexis to incorporate West page numbers in its online system upon payment of “substantial” license fees (reported to be $3 million a year). A Lexis spokesperson noted that although there was no definitive court ruling on the merits “contractually we are recognizing their copyright.” Since the license to Lexis was limited to the online service it constrained the company’s later initiatives in CD-ROM distribution.

While a 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) cast substantial doubt on the West copyright claim, the company continued to use it to beat back the flock of new entrants drawn to case reporting during the early 1990s by the low cost of CD-ROM publication. See Oasis Pub. Co. v. West Pub. Co., 924 F. Supp. 918 (D. Minn. 1996) (settled while on appeal, also with a West license affirming its copyright claim).

In 1992 the Thomson Company, not yet owner of West or merged with Reuters, supported a bill introduced in Congress by Barney Frank (H.R. 4426, 102d Cong. (1992)) that would have specifically excluded copyright coverage of the names, numbers, and citations of state and federal statutes, regulations, and law reports. Fiercely opposed by West, the proposal failed to get beyond committee hearings.

Later, during negotiations over the terms of the consent decree that cleared the way for Thomson’s acquisition of West, West’s agreement to grant star pagination licenses to others than Lexis was trumpeted by the U.S. Justice Department as a key concession.  Under pressure from District Judge Paul Friedman, West’s agreed-to licensing terms were repeatedly liberalized.  The judge explained:

Charging money to small publishers for obtaining a license to use a pagination system to which any copyright claim seems questionable would impermissibly shift the costs of litigating the legal uncertainty of West’s copyright claim.

The final decree deferred all license fees for small publishers “until a decision on the merits by the United States Supreme Court … with respect to West’s copyright claims or December 31, 2000, whichever comes first.”

December 31, 2000 came first and as of January 2014 the Supreme Court has not ruled. Thomson Reuters, now West’s owner, has yet to relinquish the claim that volume and page numbers drawn from its reports (the only accepted means of citing a passage within the opinions of a majority of U.S. jurisdictions) and inserted by others in public domain texts infringe its copyright. Malamud knows this well for in 2007 he wrote Thomson Reuters asking for clarification of the scope of its copyright claim in the National Reporter System. The reply by its deputy general counsel reasserted the company’s claim to a copyright in the “selection and arrangement, within each reporter, of the individual case reports.” His letter noted that the 1998 Second Circuit case, Matthew Bender & Co. v. West Pub. Co., 158 F. 3d 693 (2d Cir. 1998), holding that the insertion of the West star pagination was not an infringement of copyright, was decided 2-1 over a strong dissent and that the Eight Circuit had consistently held to the contrary. The Court of Appeals case law collection offered by Public.resource.org ends in 2007 and contains no West page-break data. See, e.g., Moore v. Quarterman, 491 F.3d 213 (5th Cir. 2007).

Regrettably Malamud’s proposed “Edicts of Government” Copyright Act amendment would not, standing alone, lay this claim to rest. That is because West, now Thomson, has consistently conceded that the decisions issued by a court, like the laws passed by a legislature, are in the public domain. Its proprietary claims have been limited to value its editors have added. Should Congress ever get around to amending the Copyright Act in this area, additional language like that contained in the 1992 bill is called for, language explicitly denying copyright coverage to:

  • … any name, number, or citation by which the text of State and Federal laws or regulations are, or ever have been, identified; [and]
  • … any volume or page number by which State or Federal laws, regulations, judicial opinions, or portions thereof, are, or ever have been, identified

The designations by which laws and judicial opinions are cited are so integrally connected with the texts they identify their copyright status ought to be addressed at the same time. All the reasons why copyright law should not be available for use by public bodies or commercial entities to restrict access to or republication of “edicts of government” apply equally to the data that identify them, whether volume and page numbers, title and section numbers, or more contemporary, medium-neutral citation schemes.