Posts Tagged ‘cases’

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

Tuesday, January 24th, 2017

I. Introduction

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

II. The Simple Steps this One Court Has Taken

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

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

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

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

III. Critical Respects in Which the Model Falls Short

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

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

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

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

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

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

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

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

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

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

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

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

A. The Judicial Conference Response to the 1996 ABA Resolution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Four aspects of the example warrant notice:

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

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

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.

 

California (Finally) Ends Automatic Depublication

Monday, June 20th, 2016

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

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

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

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

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

 

 

 

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.

Citation Software

Monday, January 4th, 2016

Citations and Software – A Long and Vexed Relationship

Hat tip to the team responsible for Blueline (http://blueline.blue/), who suggested a post on the love-hate relationship between programmers and The Bluebook.

They have discovered, as others have before, how challenging it is to create software that will identify all the legal citations in a document and do something to or with them. The trail, dotted with patents and patent applications, is a long one, stretching back to the 1980s when a pair of Harvard Law School grads established a software enterprise they called Jurisoft. By 1986 Jurisoft’s offerings included CiteRite, list price $395, very likely the first successful PC program focused on the professional rather than business side of law practice. CiteRite would scan a brief for citations and generate a report enumerating all failures to conform to Bluebook format. In short order, Jurisoft was acquired by the parent company of Lexis. By 1990 the Jurisoft line included a companion program named FullAuthority, which to quote one reviewer had the “smarts” to do the following:

All you have to do with FullAuthority is tell it the name of the text file on your computer that contains the legal citations. It will zip through your document, tracking each legal citation like a bloodhound. When it has rounded them all up, it will organize them into groups. These groups may include cases (with separate categories for state and federal cases), statutes (with separate categories for state and federal statutes) and other authorities.

Together CiteRite II and FullAuthority comprised Jurisoft’s Citation Toolbox.  Their system requirements are a stark reminder of the computer environment of the early 1990’s:

IBM PC or compatible, MS-DOS 2.0 or higher, 250 kilobytes available memory, hard disk recommended

In the early 1990s both major online providers were moving toward hyperlinking some of the citations that appeared in their collections of judicial opinions, which, of course, required them (and all subsequent competitors) to have sophisticated inhouse tools for identifying and manipulating citations.

In time Word replaced WordPerfect as lawyers’ preferred word processing software and Dakota Legal Software brought out a Word add-on designed to compete with the Jurisoft programs. Lexis acquired its technology as well and folded it into the company’s Lexis for Microsoft Office. Today, that package, like the comparable Drafting Assistant from Westlaw, performs cite-checking, quote-checking, and citation linking in addition to format review and table of authorities compilation.

Both major vendors also have, included as part of their latest generation systems, a copy-with-citation feature purporting to furnish a properly formatted citation (in any one of numerous formats including the distinctive non-Bluebook variants employed in California. Michigan, and New York).  They were reviewed in an earlier post.

Citation tools operating outside and apart from Westlaw and Lexis continued to appear. Although maintenance of the CiteIt! software appears to have ended over a decade ago, the product’s features are still on display at: http://www.sidebarsoft.com/. Another product, CiteGenie, held its ground until WestlawNext’s copy-with-citation feature effectively supplanted it. And, for a time, Jureeka! offered those reading citation-filled documents on the open Web a browser add-on that would converted plain text citations into links. Now along comes Blueline.

Some Reasons for Programmers to Love The Bluebook

Whether designed to review a document for citation format compliance, to check a citator for authority undercutting cited decisions, or to compile a table of authorities, verify the accuracy of a quotation, or generate a link, citation software must first identify which of the diverse character strings found as it scans a document constitute citations and not addresses, part numbers, or radio station call letters. If citation format were uniform across the United States, if judges in federal and state courts and the lawyers submitting documents to them conformed their citations of authority to a common standard presented in a consistent format, the job would be an easy one. The Bluebook, with its claim to offer “a uniform system of citation” (a phrase its proprietors have trademarked), purports to be just that. And so it is within the universe of academic law journals. Complex though it may be, to the extent that the citations in U.S. law writing conform to The Bluebook the programmer’s job is relatively straightforward. To the chagrin of those attempting to construct citation-identifying algorithms, however, courts in the fifty U.S. states have quite diverse ideas about citation norms. Often they are focused narrowly on the legal authorities most frequently cited in cases coming before them. The Bluebook specifies that Indiana Code sections be cited in the format “Ind. Code § x-x-x-x” and those of the Idaho Code as “Idaho Code § x-x”, but when judges and lawyers in Indiana cite code provisions to one another they often cite to I.C. § x-x-x-x; just as those in Idaho cite to I.C. § x-x. Generally, the federal courts and those practicing before them take a less parochial view when citing state authorities, but they are far from consistent on some very basic points. The Bluebook has it that a provision in the Code of Federal Regulations should be cited: “x C.F.R. § xxx.xx (year)”. The U.S. Supreme Court favors “x CFR § xxx.xx” (no periods, no date) but is not followed on this point by most lower federal courts. (Those at Blueline claim their citation analysis suggests “that Republican appointed judges typically cite the U.S. Code as ‘USC’, whereas Democrat appointees prefer ‘U.S.C.'”) Approaches to compressing party names and citing treatises are all over the place.  The same holds for abbreviations of the several sets of federal procedural rules as cited in briefs and court opinions.

A citation reform movement of the last two decades has called for courts to break away from print-dependent case identifiers through the attachment of vendor and medium neutral citations to their decisions prior to release. Building on recommendations of the ABA, the American Association of Law Libraries (AALL) prepared a detailed implementation manual. It carries the title AALL Universal Citation Guide and provides a modern blueprint for uniformity. No surprise, several of the states adopting the new approach have deviated substantially from it. How does The Bluebook address the resulting lack of uniformity? Its Rule 10.3.3 instructs that “the requirements of the jurisdiction’s format should be observed.”

As the folks at Blueline put it “the approved and unapproved variations in Bluebook style create a huge hurdle for coders who rely on hard and fast rules.”  Weak force though it may be, The Bluebook does offer a template for citation recognition on which programmers can begin to build. Deviations from its “uniform system” can be then treated as special cases or alternatives.

Grounds for Programmer Frustration with The Bluebook

Were all judges and lawyers to follow The Bluebook meticulously, would programmers be satisfied? Not so long as its citation rules remain stuck in print-era conventions. Volume and page number are far less precise than “2015 IL 117090, ¶ 31” which points to a single paragraph (straddling a page-break) in a uniquely identified decision of the Illinois Supreme Court. Decided this past January, the decision only later received volume number and pagination in the National Reporter System. Yet The Bluebook directs the passage in question be cited by the latter formula (unnecessary, delayed, and less exact). Page numbers can even yield ambiguous results. A Blueline communique reports that “a query intended for Peate v. McCann, 294 F.3d 879 (7th Cir. 2002) accidentally pulled McCaskill v. Sci Management Corp., 294 F.3d 879 (7th Cir. 2002) because the latter opinion was only 44 words long.”

The Bluebook‘s deference to the major online services, particularly when dealing with the increasingly large pool of “unpublished” decisions, is another problem. A single decision is known as “2015 BL 377979” on Bloomberg Law, “2015 U.S. Dist. LEXIS 155224” on Lexis, and “2015 WL 7253819”.  Google Scholar and other public access sites have the decision but don’t know it by any of those designations. No citation parser can establish the identity of those references or match any of them to a non-proprietary version of the case. Situated as it is in the academy, a domain handsomely served by the major commercial systems, The Bluebook fails to address this problem adequately, and its deference to the commercial sector leads to a strong bias in favor of publisher-specific citations.

That same bias combined with The Bluebook‘s continuing attachment to print leads to rules for statutory and treatise citations that are not followed uniformly because in the current practice environment they simply cannot be.

Make that “Advert.” not “Adver.”

Tuesday, October 6th, 2015

For nineteen years The Bluebook has decreed that when the word “Advertising” appears in a case name it should be abbreviated as “Adver.”  The pairing of word and abbreviation first appeared in the sixteenth edition.  The codification at once captured the then prevailing professional practice and encouraged use of that abbreviation over the two common alternatives.  Those were: 1) to include the word in full or 2) to abbreviate it to coincide with the British informal term, rendering it “Advert.”

Inexplicably, the latest edition of The Bluebook has added a terminal “t”, embracing an approach it rejected in 1996. Henceforward, all who follow its mandate must cite:

  • City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991)
    • as
  • City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365 (1991)

Why make the change?  Successive editions of The Bluebook have regularly added new “mandatory” abbreviations. The T6 list of the sixteenth edition had 120 entries. In the nineteenth there were 144, including an entry for “County” (to be abbreviated “Cnty.”). This latest edition is the first, in my memory, to substitute new abbreviations for established ones. In addition to supplanting “Adver.” with “Advert.” it has replaced “Cnty.” with “Cty.” Neither change addresses a source of potential confusion. Neither is driven by professional citation practice.

A failure to proofread? Implausible. The most likely explanation lies in the increasingly proprietary claims of The Bluebook enterprise. Faced with a better teaching book, the ALWD Guide to Legal Citation, and with data sources and software packages that purport to deliver citations that conform to its rules its editors made a number of arbitrary changes. “Copy if you dare,” they seem to be saying. For those operating within the universe of law journal publication such arbitrary changes may be hard to resist. With lawyers and judges, they’ll largely be ignored.

 

The Bluebook’s Inconsistency about When to Identify an Electronic Source

Friday, August 28th, 2015

The Issue

Most legal research in the U.S. is conducted using electronic source material, and for many types of cited works, primary and secondary, there are at least several possible sources.  A pervasive issue is whether a citation ought specify the source relied upon by the author or whether instead a generic citation, adequate to retrieve the cited work from all widely used sources, will suffice.  The latest edition of The Bluebook delivers inconsistent and, at times,  confusing guidance on the point.

Cases

Consider a brief that cites a slew of cases, state and federal.  If the author has retrieved them all from an online source (Westlaw, Fastcase, Google Scholar, an official court Web site) should her citations note that source?  A fair reading of The Bluebook (20th ed.) yields the conclusion that they need not.  Rule 10.8.1 authorizes, but does not require, citation to a specific database when “a case is unreported but available in a widely used electronic database.”  There is no suggestion that a citation to a “reported” decision (i.e. reported in print), such as State v. McIver, 858 N.W.2d 699, 702 (Iowa 2015),  need state that the author relied upon Google Scholar or Fastcase or acknowledge that despite the use of volume and page numbers, she did not review the text in the print reporter to which they correspond. Similarly, a citation to State v. Ortega, 2014-NMSC-017, ¶ 55 is apparently complete without a notation clarifying whether the writer relied upon the official digital version available from the New Mexico Compilation Commission site or the altered version offered by Westlaw.  On this point The Bluebook‘s silence is in full accord with the citation practice of lawyers and judges.  The twentieth edition, like the nineteenth, appears to accept generic case citations.

Statutes, Constitutions, and Court Rules

What The Bluebook Says

Generic citations to a constitution or statutory provision are a different matter.  Rule 12.5(a) insists that when the writer’s source for a statutory code citation is an electronic database, the citation should include the name of the database, the publisher (unless a public office), and its currency.  Rule 11 lays down the same requirement for citations to constitutions even though it doesn’t call for identification of source if it is printed. (Presumably, one can be working from the U.S. Constitution as printed in The World Almanac and Book of Facts without confessing it.)  In contrast, rule 12.9.3 fully embraces citations to rules of evidence and procedure that leave off source, whether print or electronic.  Consistency in approach is lacking; no clear rationale for the different requirements is evident.

What Judges and Lawyers Do

When contemporary decisions of the U.S. Supreme Court or U.S. Court of Appeals cite provisions of the U.S. Copyright Act they refer to them by U.S. Code title and section number – no date (current provision being implied), no indication of source.  The odds are very high that the source relied upon by the judges or their clerks was Westlaw.  That being the case The Bluebook (rule 12.5) would call for a citation along these lines:

  • 17 U.S.C.A. § 301(a) (Westlaw through Pub. L. No. 114-49).

Instead the opinion will almost certainly cite the provision generically:

  • 17 U.S.C. § 301(a).

As will briefs submitted in the case.

Commentary

The Bluebook‘s strong stance on the primacy of print when citing treatises was the subject of a prior post.  Its position on law journal articles appears, at first, to be stated in similarly unequivocal terms.  Rule 16.8 requires that when “citing periodical materials to a database” one include “a citation to the database”.  But rule 18.2.1 (added with the nineteenth edition in 2010) provides that when an exact copy of a print source is available online it can be cited “as if to the original print source.”  That, of course, is standard professional practice with law journal citations.  Surely, such citations needn’t indicate whether the author retrieved the article in question from Lexis, Westlaw, HeinOnline or the journal’s own online archive.

The Rule that Should Swallow its Exceptions

The relationship between rule 18.2.1 and The Bluebook‘s various mandates to identify one’s actual source is unclear.  In all likelihood this is a case where the specific (the mandate concerning statutes, for example) is intended to prevail over the more general rule.  Both reflect the continuing grip of a print mindset, quite at odds with the world in which today’s lawyers and judges work.  Rule 18.2.1. itself carries a heading that refers to “the original print source.”  In truth the original source of nearly all print documents of the current era is electronic.  Rule 18.2.1(a)(iii) and rule 18.2.2(f) express an attachment to electronic material that is held in pdf format because it “preserves the pagination and other attributes of the printed work.”  Yet the information sources most heavily used by the legal professions, Westlaw, Lexis, Bloomberg Law, and the rest, scroll and hyperlink rather than page.  What is critical is that the source be reliably accurate and that it contain the accepted units of citation for the cited work, whether page, section, or paragraph numbers, and not that it look and behave like print.  Need it be an “exact copy” as rule 18.2.1 would seem to require?  On its face that would rule out all the online services that enhance decisions and statutes with parallel citations and other editorial tampering.  The Bluebook‘s level of unreality on these points can only be excused on the ground that it is prepared by students at four elite law schools and aimed primarily at the legal education market (list price $38.50).  Ironically, the proprietors now offer “the full content of The Bluebook” online (on a subscription basis – $36 for one year, $46 for two) and as an Apple ios app ($39.99).  Presumably, they intend these different formats to be viewed as interchangeable.  Believing it safe to rely on the authors for consistency, I don’t feel obliged to report which I relied upon in preparing this post.

Oklahoma’s Court Network Threatened by Legislative Proposal

Friday, May 29th, 2015

In 2014 this blog reported on the decision by Oklahoma’s Supreme Court that the electronic versions of state appellate decisions published on the Oklahoma Supreme Court Network (OSCN) would replace those printed in the National Reporter System as “official”.  A budget crisis brought on by declining oil revenues now places that critical publication channel in jeopardy.  A proposal before the legislature would divert nearly all the dedicated fees on which OSCN depends to other uses.

New Mexico’s Mandate That Medium-Neutral Citations Be Used for Cases Originally Issued without Them

Wednesday, May 20th, 2015

New Mexico’s Unique Citation Rule

Since August 1, 2013 briefs, memoranda, and other papers filed with New Mexico’s courts have been required to use a system of medium-neutral case citation for all New Mexico appellate decisions. That citation system, similar although not identical to the model recommended by the American Bar Association and American Association of Law Libraries, was first implemented by the New Mexico Supreme Court in 1996. Pierce v. State, released for publication on January 4th of that year, was designated “1996-NMSC-001”. The first decision of the state’s court of appeals in 1996, State v. Gutierrez, carried the citation “1996-NMCA-001”. Both were issued with numbered paragraphs. Simultaneously issued citation rules required filings in New Mexico courts to cite those decisions and subsequent ones using their medium-neutral citations.

What is unprecedented about the 2013 amendment to those rules is that it requires that New Mexico’s print-independent citation system be used for all pre-1996 decisions reaching back to 1852. No other state has taken this step. Shortly after Oklahoma implemented medium-neutral citation in 1997, it retrofitted all prior reported decisions. But that state’s citation rule, then and now, simply provides that parallel citations employing the print-independent scheme are “strongly encouraged for opinions promulgated prior to May 1, 1997“.

Some Background

The New Mexico Compilation Commission began as an agency responsible for producing a full compilation of the state’s statutes, hence its name. In 1982, however, the commission was  given additional responsibility — publication of the New Mexico Reports. In 2004 it was declared to be the state’s official legal publisher. In 2011 the commission ended print publication of the New Mexico Reports, and the state’s supreme court designated the authenticated electronic files of decisions at the Compilation Commission web site their final, official version.  And in 2012 the Commission’s database of electronic decision files, each with a medium-neutral designation  (e.g., “1982-NMCA-051”) and paragraph numbering, was extended all the way back to Bray v. United States, 1852-NMSC-001.

Today, the Compilation Commission offers legal professionals and state offices the compiled statutes of New Mexico in both print and electronic format.  Combined with the state’s case law, court rules, decisions of the regional federal courts, and other material, the commission’s integrated DVD and online database serve state and local government offices and compete with the commercial research services in the legal information market.  Because of an attractive subscription price (roughly $60 a month for the general public, less for state and local government agencies), official status, and a growing list of features (most recently a limited citator service for its case reports) these services, known as NMONESOURCE, do, in fact, offer serious competition.

The principal drawback of the Compilation Commission’s database for legal professionals is its tight focus on New Mexico.  With some frequency the state’s judges and lawyers need access to federal case law, statutes, and regulations.  On occasion, they must consult decisions from other states.  Although the Compilation Commission’s electronic library includes a collection of the most useful federal decisions and serves as a portal, linking to Google Scholar for the case law of other states and U.S. government sites for the Federal Register and Code of Federal Regulations, it falls short of providing a full range of non-New Mexico primary legal material.  At a minimum the users of NMONESOURCE must, from time to time, turn to some other research service.   Convenience may lead them to stay or even start out elsewhere.  The default “other service” for New Mexico’s lawyers is Fastcase, available as a membership service to all members of the bar.   For the state’s judges it is Westlaw, to which all of them, from the district courts  through the state supreme court, have access under a group Westlaw subscription.

Consequences to Date

Compliance by Judges, Lawyers, and Law Students

Current decisions of the appellate courts of New Mexico model the citation format the 2013 rule requires of lawyers.  While that rule does not require parallel print-based citations for state decisions dated after the cutoff for the final volume of the New Mexico Reports, judges continue to include parallel references to the Pacific Reporter of the Thomson Reuters National Reporter System.   As the rule directs, however, their pinpoint references employ the paragraph numbers of the medium-neutral format.  Review of a small sample of briefs filed in recent New Mexico appeals leaves little doubt that the system has also taken hold among lawyers.  Student editors of the New Mexico Law Review employ the new citation method in their writing.

Take Up by Major Law Databases

To comply with the 2013 citation rule, the judge, lawyer, or law student needs access to a database that has retrofitted its collection of New Mexico’s pre-1996 decisions with medium-neutral case identifiers and paragraph numbers.  A database search on “contract breach” may lead a researcher to the 1959 decision of the New Mexico Supreme Court in Wolf v. Perry or the 1993 case, Mark V, Inc. v. Mellekas.  When first published and for years thereafter the volume and page numbers of those two decisions in the New Mexico Reports and Pacific Reporter would have provided proper citations.  Indeed, they had none other.  But as of August 1, 2013, Wolf v. Perry is to be cited as “1959-NMSC-044”; Mark V, Inc., as “1993-NMSC-001”.  While a search on Bloomberg Law, Google Scholar, or Fastcase will take you to those cases, none of those services yet delivers their neutral citations, let alone the paragraph numbering needed to direct a reader to a specific passage.

Does this place the subscription service offered by the New Mexico Compilation Commission in a unique competitive position?  No.  The same search conducted on LexisNexis or Westlaw reveals that those services have followed the commission’s lead and added neutral cites and paragraph numbers to all pre-1996 New Mexico cases.  Other research services serious about the New Mexico market will, no doubt, do the same.  No license from the state is required.  Despite the copyright notices that appear throughout the Compilation Commission site, New Mexico could not and does not claim copyright in either the case citations or paragraph numbers.

In the meantime, researchers who wish to cite pre-1996 cases identified through use of a database that has not inserted the new citation parameters can obtain them, case-by-case, from open access resources offered by the Compilation Commission.  The commission’s web site holds tables that allow one to convert any pre-2013 official cite (“65 N.M. 457” or “114 N.M. 778”, say) to the new system (“1959-NMSC-004” and “1993-NMSC-001”, respectively).  The site also provides, as a free public resource, a comprehensive case law collection reformatted in accordance with the new standard.  From it one can draw the paragraph numbers the new rule calls for in pinpoint cites.  Furthermore, because the commission’s site is open to external search engines it is possible to bypass the lookup tables and go straight to the decision one wants to cite.  A Google search on “114 N.M. 778” or “845 P.2d 1232” limited to the commission’s site will lead directly to the medium-neutral version of Mark V, Inc. v. Mellekas as well as recent cases citing that decision.  In fact, because the site is open to external search engines the initial case research need not begin elsewhere.

Lack of Reinforcement in NMSA and Most Other Annotations

As the state’s official publisher the New Mexico Compilation Commission also publishes the New Mexico Statutes Annotated and the New Mexico Rules Annotated.  Both are included in electronic form as components of its online and disc products.  They are also sold in print.  In neither have annotations to pre-1996 decisions yet been conformed to the new rule.  An annotation’s reference to a 1994 case will still cite it as  “In re Cutter, 118 N.M. 152, 879 P.2d 784 (1994)” rather than “In re Cutter, 1994-NMSC-086, 118 N.M. 152″.  So long as a researcher is working from the DVD or online version the annotation’s obsolete format is not a problem for the cites are linked to copies of the opinions, which carry the now official neutral citations and paragraph numbers.  On the other hand, since programmatic conversion of the old-form citations should be fairly straightforward there is reason to expect that it will occur before long.

The annotations that appear in Michie’s Annotated Statutes of New Mexico, as published online by LexisNexis, do contain cites that conform to the new rule.  Those in West’s New Mexico Statutes Annotated and in the Fastcase annotations to the New Mexico Statutes, as yet, do not.

Effects Limited to New Mexico

Many decisions of the U.S. District Court for New Mexico do employ the state’s medium-neutral citation scheme when citing its courts’ post-1996 decisions.  Not all do, however, and there is little evidence to date that federal judges will be induced to cite older New Mexico decisions in accordance with the 2013 rule.  When decisions from New Mexico, contemporary or older, are cited in other states, even states with their own systems of neutral citation, they are, almost invariably, cited by volume and page number.

A Model for Other States?

Oklahoma is the only other state to apply a non-proprietary medium-neutral citation scheme retrospectively to its full body of case law.  There, nearly two decades of “strong encouragement” to use the system in citing older decisions has had a pervasive effect on in-state citation practice.  In Oklahoma, like New Mexico, the policy was undergirded by creation of a comprehensive database of state law open to judges, other public officials, lawyers, and members of the general public — an initiative explicitly aimed at loosening dependence on commercial systems.

The barriers inhibiting prospective adoption of any new citation approach are sufficiently daunting and the costs of creating the necessary supporting database large enough that all other states adopting medium-neutral schemes have been content to leave their print-era case law wrapped in print-era citations.  Two of them, Arkansas and North Dakota, have done so despite having created public databases of earlier appellate decisions.  So long as the boundary between old and new is distinct this seems a totally defensible approach.  How a Illinois judge or lawyer should cite decisions of that state’s courts rests very clearly on when the decisions were filed.  Those released prior to July 1, 2011 and published in the Illinois Official Reports must be cited by volume and page number.  Decisions filed on or after July 1, 2011 with a “public-domain citation” must be cited using it.

What reasons might have led New Mexico to take a more radical approach to citation reform?  The first is that it could.  Without a full retrospective case law collection the publications and legal research services of the New Mexico Compilation Commission were seriously incomplete, including importantly its flagship New Mexico Statutes Annotated.  Assuming that construction of such a comprehensive digital archive had to be undertaken, the attachment of non-print-based citations in the same format as those that judges and lawyers had used for post-1996 cases may have seemed a modest add-on.  Moreover, the rule change could be seen as placing NMONESOURCE, the Compilation Commission’s subscription service, in a uniquely authoritative position.  Set up as an “enterprise unit” funded out of sales and subscription revenue along with a dedicated portion of court filing fees, the commission was in need of a resource boost.  As the annual report of the New Mexico judiciary for fiscal year 2013 noted:

The challenges facing the [commission] are the increases in publishing costs while revenue declined for the second year in a row. There is a significant loss in civil action filing fees due to the decrease in civil actions filed. There is strained subscription revenue stemming from the economy overall and the increase in self-represented litigants who elect to file civil actions and appear in court without legal counsel. Lawyers are forced to make difficult decisions to postpone subscribing to the official laws in favor of the limited, unannotated laws on the public access site.

However, since that same public access site provides a complete set of New Mexico decisions as well as look-up tables matching volume and page number cites with their medium-neutral equivalents and the leading commercial database services have rapidly incorporated the new cites, the 2013 rule change may not, in the end, have a significant effect on NMONESOURCE subscription revenue.

No other U.S. jurisdiction has an agency with the broad charge and challenging duties of New Mexico’s Compilation Commission or today has the initiative, incentive, or resources within the judiciary to create a database like the one Oklahoma established years ago.  For that reason it seems unlikely that the path New Mexico and Oklahoma have blazed will be followed by others anytime soon.