Posts Tagged ‘neutral citations’

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.

Better Never than So Very Late?

Thursday, September 22nd, 2016

The Supreme Court – Opening a New Term in Serious Arrears

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

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

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

Adopt a Similar Pace

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

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

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

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

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

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

Ignore and Keep Moving

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

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

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

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

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

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

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

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

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

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

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

Dealing with the Deep Backlog of Skeletal Citations

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

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

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

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

A Need to Take Electronic Publication More Seriously

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

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

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

Would Congressional Action Be Required?

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

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

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

 

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

Friday, May 6th, 2016

The Thomson Reuters Errata Notice

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

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

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

Failure to View Case Law Publication as a Public Function

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

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

Major Failings of the Federal Courts’ Existing Approach

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

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

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

Failure to Employ One Consistent Format

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

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

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

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

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

The Ripple of the Thomson Reuters Errors into Other Database Systems

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

Services Unaffected by the Thomson Reuters Glitch

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

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

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

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

Might FDsys Provide a Solution?

fdsys

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

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.

 

The Complex Relationship between Citations and Citators

Wednesday, April 29th, 2015

Shepard’s Citations

In 1873, Frank Shepard began compiling and selling lists of citations to Illinois decisions printed on gummed paper (Shepard’s System of Adhesive Citations).  Purchasers pasted them into the margins of their bound case reports.  Shepard’s lists linked each reported case to any subsequent reported decision that referred to it.  When gummed addenda proved too cumbersome a tool (even more troublesome to maintain than looseleaf volumes), Shepard’s Citations moved to separate volumes.  These were books of citations designed to stand beside law reports – volumes that simply pointed from one book to others by means of citation.

Shepards

For over a century law students, lawyers, and judges conducted forward citation searches on key decisions using the Shepard’s publications.  So tight was the association that the process became known as “Shepardizing”.  One “Shepardized” a case to assure it had not be overruled by a higher court, to determine its status and range of interpretation within the jurisdiction of origin, to see how it had been treated elsewhere.

Cases and Citators Go Digital

Once electronic databases were central to case research, their incorporation of a citator function became essential.  The value of providing the digital equivalent of Shepard’s gummed list proximate to every retrieved opinion was obvious. And in a hypertext environment that list of citing cases could itself offer point and click access to each one of them.  Moreover, once held in a database the entries could be filtered and sorted.  Today, all case law database services of professional quality offer retrieval of subsequent citing cases as an option adjacent to each opinion.  Some not only list the citing cases but analyze and characterize those references as the Shepard’s print publications once did.

As electronic case law collections evolved, however, they posed fresh challenges for these companion citators.  Increasingly the leading online databases added decisions that the Shepard’s lists had ignored, cases without standard print citations.  These included opinions that would never be published in print, either because of court designation or publisher discretion, as well as “slip” versions of those whose publication was anticipated but had not yet occurred.  Generally unexamined is the extent to which the relative performance of today’s online citators is affected by how they deal with citations in and citations to opinions falling in these two categories.  That performance varies considerably.  Researchers who assume complete results are, with some services, likely to miss important cases.  Those who know the limitations of the citator on which they rely can, when necessary, augment its results with their own database search.

The Citator Challenges Posed by Unpublished Decisions

Citations to Not Yet Published Decisions

Because of their high volume Social Security cases provide a particularly clear illustration of the problem posed by the delayed application of citation parameters and the range of responses to it by the citators now embedded in the major online services.  As of April 23 five “precedential” decisions in cases appealing a denial of benefits by the Social Security Administration had been released by the Seventh Circuit U.S. Court of Appeals since the beginning of 2015.  (Decisions the Court does not deem significant to other cases it labels “Nonprecedential” and withholds from publication in the Thomson Reuters Federal Reporter series.)  “Four of the five were written by Judge Richard Posner.  Three of his decisions and one by Judge Daniel Manion reversed trial court decisions that had affirmed the agency’s benefit denial.

From the moment of release, the potential ripple effect of opinions like these is substantial, throughout the district courts falling within the Seventh Circuit and beyond.  Consider the numbers.  During the twelve months ending June 30, 2014, those districts received 1,441 Social Security appeals.  Within weeks, in some cases days, the five 2015 Court of Appeals decisions were being cited.  Curvin v. Colvin, No. 13-3622 (7th Cir. Feb. 11, 2015), the earliest of the set, has now been cited at least 12 times.  (A pro-claimant Social Security decision of the Seventh Circuit handed down a little over a year ago  – Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014) –  has been cited over 125 times, at least twice outside the circuit.)

Curvin illustrates the difficulty faced by anyone or any system attempting to track these citing references.  The decision was handed down on February 11, 2015 but did not receive its “778 F.3d 645” designation until a month and a half later.  During the intervening weeks it was cited at least eight times by district courts within the Seventh Circuit.  Perforce those citations identified the Seventh Circuit opinion by docket number and exact date or a proprietary database citation (“WL”).  Most, but not all, used both in parallel, yielding citations in the following form: Curvin v. Colvin, No. 13-3622, 2015 WL 542847 (7th Cir. Feb. 11, 2015).  A straight database search on “778 F.3d 645” will not retrieve those cases.  A database search on “2015 WL 542847” will retrieve those using the Westlaw cite (but not those employing the LEXIS equivalent “2015 U.S. App. LEXIS 2170” or the “F.3d” cite).  A search on “13-3622” and “Curvin” will retrieve those including Curvin’s docket number but not those relying solely on a proprietary database cite or the ultimate “F.3d” cite.

Most case law databases purport to do this messy work for the researcher.  With some Curvin’s rank in a set of search results may even be determined by how many citations to it there have been.  What not all manage to do is to include those instances of citation that occurred so soon after Curvin’s release they could not refer to the case as “778 F.3d 645”.  A review of how the major systems actually address this issue (or don’t) follows.

Westlaw

The dominance of Westlaw within the federal judiciary gives that system a clear advantage.  So long as the early decisions cite the not-yet-published version of a case using its “WL” citation, Westlaw can employ that identifier to link them with those citing to the version later published in the company’s National Reporter System (NRS).  But what about decisions written by  federal judges who use LexisNexis and cite using its proprietary system?  Senior Judge Donetta W. Ambrose of the Western District of Pennsylvania falls in this category.  Had she relied on Curvin in late February or early March 2015, her opinion would almost certainly have cited it: Curvin v. Colvin, 2015 U.S. App. LEXIS 2170 (7th Cir. 2015).  (See, for example, her decision in Nickens v. Colvin.)  How would Westlaw have responded?  It would have added a parallel “2015 WL 542847” to her Lexis cite, as it does to all opinion citations to “not yet published” or “never to be published” cases contained in the Westlaw database.  That editorial step simplifies aggregation of all citations to a case prior its print publication.  While Westlaw no longer displays the “WL” cite for decisions that have been given print citations in the National Reporter System, the service’s citation listings rest on its maintaining the association between preliminary “WL” cites and their subsequent NRS equivalents.  This approach enables Westlaw’s listing of cases citing Curvin to include the early ones that did not use its F.3d volume and page number.

westlaw_citator

LexisNexis

Lexis follows a similar strategy.  Since most federal judges use Westlaw most of the early decisions citing Curvin used its Westlaw cite.  See, e.g., Haire v. Colvin, No. 1:14-CV-00322-TAB-JMS (S.D. Ind. Feb. 20, 2015).  On Lexis the cite to Curvin in Haire includes an added “U.S. App. LEXIS” cite.  That enables the inclusion of Haire in the service’s dynamically generated list of decisions citing Curvin.  It also facilitates another Lexis practice, the subsequent addition of parallel “F.3d” cites to decisions that did not, as written, include them.

lexis_citator

Bloomberg Law

Bloomberg has a “BL” citing scheme which it now deploys much like the Lexis cites, but with greater clarity.  When a case in its database is cited by a later decision using only docket number and date or a Westlaw or Lexis cite, Bloomberg inserts a parallel “BL” cite.  This editorial addition is, however, placed in square brackets, an acknowledgment that it was not part of the original text.  Bloomberg Law has expanded Haire’s cite to Curvin written by the court as “Curvin v. Colvin, No. 13-3622, 2015 WL 542847, at *4, — F.3d —- (7th Cir. Feb. 11, 2015)” to “Curvin v. Colvin, No. 13-3622, [2015 BL 34654], 2015 U.S. App. LEXIS 2170 , 2015 WL 542847 , at *4, ___ F.3d ___ (7th Cir. Feb. 11, 2015)”.  This practice appears relatively new.  Decisions of an earlier vintage Bloomberg loaded as received without adding “BL” parallel cites.  As a result decisions from that period are missed by Bloomberg’s linked retrieval of citing documents.  (The fact that Bloomberg’s versions of decisions now also include the Lexis cite, without the square brackets, suggests a data sharing arrangement between the two companies.)

bloomberg_citator

Judging at least from this sample of one, Bloomberg appears to add cases more rapidly than either Westlaw or Lexis.  During the week of April 20th two more district court decisions citing Curvin were released.  Both were in the Bloomberg database and listed as citing cases the following day.

The More Limited Approach of Google Scholar, Fastcase, and Casemaker

Google Scholar does not to attempt to track citing references for cases until they have received a permanent citation in the Thomson Reuters books.  To date it does not have the NRS version of Curvin.  When one clicks on the “How cited” link for the “slip” version of the  case, one gets the message: “We could not determine how this case has been cited.”  To find those cases a researcher must know to search on the party names and Curvin’s docket number or, alternatively, on its proprietary cites.  The latter, of course, do not appear on Google Scholar or the public domain version of Curvin released by the Seventh Circuit and now (and forever?) available from the GPO’s Federal Digital System (FDsys).  At some point Scholar will replace the original version of Curvin with that published by Thomson Reuters.  Once it has, the decision’s “How cited” link will work, but it will not retrieve the early cases which did not cite Curvin by volume and page number because they could not.  Researchers who know that can augment Google’s automatically generated list by doing the sort of searches suggested above.

Like Google Scholar both Casemaker and Fastcase limit their retrieval of citing cases to those that cite by means of NRS volume and page number, thereby missing the earliest references.  Leavitt v. Cohen, No. 1:12-cv-1427-DKL-JMS (S.D. Ind. March 4, 2014) cited Moore v. Colvin, 743 F.3d 1118 (7th Cir. 2014), released less than a week before, using the format: Moore v. Colvin, ___ F.3d ___, 2014 WL 763223, *1(7th Cir. 2014).  Since neither Fastcase nor Casemaker later fill in such blank “F.3d” citations or employ an enduring identifier for Moore (like the proprietary citation schemes of Bloomberg, Lexis, and Westlaw) neither includes Leavitt as a case citing Moore as those services do.

What about Newcomers like Ravel Law and Casetext?

Casetext does not yet have a fully developed method of indexing citing cases.  It is designed to allow the ranking of search results by “Cite count” but while its database includes many more it lists only two cases as citing Moore.

Ravel has stronger incentive to solve the citator problem because its visualization of search results derives in significant part from citation links.  However, to date Ravel’s cite count does not include case citations that pre-date the availability of the canonical NRS volume and page cite for a case.  It counts only 70 cases as citing Moore v. Colvin.  Those in its database not using that decision’s full “F.3d” cite do not make the list.

Citators and Never-to-be-Published Decisions

A 2013 “unpublished” Social Security decision of the Ninth Circuit illuminates this closely related citator issue. In Farias v. Colvin, No. 11-57088 (9th Cir. May 20, 2013), the court reversed a district court decision that had affirmed a denial of disability benefits.  Its memorandum opinion faulted the Administrative Law Judge’s uncritical acceptance of testimony from a vocational expert.  Being an unpublished memorandum opinion the Farias decision does not enjoy the status of precedent even within the courts that comprise the Ninth Circuit. Print-based Shepard’s would have ignored it.

On the other hand, unpublished decisions like Farias can be cited by counsel as persuasive authority.  In fact, at least fifteen subsequent (unpublished) district court decisions refer to the Farias case.  Because of the Thomson Reuters Federal Appendix reporter, Farias did in fact receive a print citation before 2013 was over, notwithstanding its “unpublished” designation, but not before being cited in at least two district court decisions.  Thus, in one sense cases like it pose the same problem for citation compilers as those posed by cases eventually published in the Federal Reporter – a need to gather the earliest citations together with later ones expressed in terms of print volume and page numbers.  However, the decision’s “unpublished” status and the dubious value of “Fed. Appx.” cites has led some case law services to stumble over providing useful citator results.  The major three –Bloomberg, Lexis, and Westlaw – use their respective systems of proprietary citation to link Farias to the full spectrum of citing district court decisions.  In contrast users of Google Scholar, Casemaker, and Fastcase are led to believe that Farias has not been cited unless they know enough to undertake a forward citation search on their own.  And because some of the citing cases use the Farias decision’s “Fed. Appx.” cite and others don’t, some include the case docket number but most don’t, some use a proprietary database citation and others not, no single search other than one based simply on the case name (“Farias v. Colvin”) will retrieve them all.

One More Argument for Adoption of Court-Applied Systems of Citation

In jurisdictions that attach official citations to decisions at the time of release there is little difficulty generating a complete list of subsequent citing cases.  Assuming that the court-attached citations are routinely used (whether or not in parallel with the National Reporter System or any other citation) a simple database search will retrieve all citing references.  In 1999 the Oklahoma Supreme Court decided an influential case dealing with attorney malpractice liability.  When released it carried the designation “1999 OK 79”.  A search on that string, whether carried out directly by a researcher or automatically by software generating a citator list, should gather a comprehensive list of references to Manley v. Brown.  That fact has enabled the Oklahoma State Courts Network database to append a list of citing cases to the decision in Manley.  Although the case appears in the National Reporter System as “989 P.2d 448” a researcher or automated citator searching cases for references to Manley will not be thrown off by use of that print reference so long as it appears in parallel with the court-attached cite, as it does in all Oklahoma decisions and in a 2013 decision of the Illinois Appellate Court.  Any citation search that relies solely on NRS citations for Oklahoma cases runs the risk of missing some.

How Google Scholar Undercuts Jurisdictions Going Digital While It Could as Easily Support them

Monday, January 26th, 2015

Google Scholar’s case law collection has been an enormous boon to this country’s lawyers and all others puzzling over U.S. law.  Not only does it provide free and direct access to a professional quality case database, but it enables legal commentary linked to governing precedent to reside outside a pay wall.  Ironically, this breakthrough electronic research tool remains largely reliant on print source material.  That is for many jurisdictions a direct consequence of the courts themselves being stuck in obsolete publication practices.  But Scholar’s reliance on print holds even for states in which there is a more authoritative digital alternative.  In the case of several state courts that have recently shifted to official online publication, Scholar persists in loading digitized versions of their decisions drawn from the pages of the Thomson Reuters National Reporter System (NRS).  For at least one – Illinois – this is done without preserving the official citation information required in all submissions to that state’s courts.

Exhibit No. 1: Google Scholar’s Treatment of Illinois Decisions

In July 2011, less than two years after Google Scholar unveiled its case law database, Illinois began publishing the official versions of its appellate decisions online.  Print publication of the Illinois Official Reports ceased.  As a consequence the final and official version of the Illinois Supreme Court in Lake County Grading Co. v. Village of Antioch, 2014 IL 115805 (and all other binding decisions rendered by Illinois appellate courts since the switch) is available for anyone, including Google, to download from a public site.  The text’s official status is indicated, and all that one needs to cite that decision to an Illinois court, in whole or in part, is contained in the electronic document.  One could hope, one might expect, that Google Scholar would embrace and leverage this judicial reform.  The change was, after all, prompted by many of the same goals that lie behind the Google initiative.  Yet Scholar continues to digitize the print NRS version of this and other post-2011 Illinois decisions.  Worse, while doing so it drops the medium neutral citations by which Illinois courts identify those decisions and require those invoking them to employ (“2014 IL 115805” in the case of Lake County Grading).  Google’s practice appears to be to harvest Illinois decisions when first released in slip opinion form, to ignore the subsequent “official” electronic version, and ultimately to replace the slip opinion with a digitized copy of the NRS text.  This final case report displays the volume number and page at which the decision is located within the NRS North Eastern Reporter as well as its internal pagination and paragraph numbers.  But critically it omits the official medium-neutral case cite.  For an example take a look at People v. Colyar, 2013 IL 111835.  It can’t be said that Scholar completely ignores the new non-print Illinois citations, for it uses them to index decisions.  As a result Colyar’s citation (“2013 IL 111835”) entered as a search will retrieve the case.  The official cite also appears in Colyar’s listing when the decision is retrieved by a typical word search.  The problem is that it remains absent from the opinion text when displayed on the screen, downloaded, or printed out.

Exhibit No. 2: New Mexico

New Mexico furnishes a second example of Google’s unfortunate print bias.  Like Illinois, New Mexico ceased publishing official print reports in 2011.  Since then the official version of any precedential New Mexico decision is contained in an electronic file retrievable without charge from the New Mexico Compilation Commission siteZhao v. Montoya, 2014-NMSC-025 is one such case.  Ignoring the change, Google Scholar has continued to draw its final text of the state’s appellate decisions from the NRS Pacific Reporter.  However, probably because New Mexico began attaching neutral citations to decisions long before the Scholar case database was conceived or designed, Google’s print-based acquisition process has, from the start, extracted those official citations from the NRS reports and included them within each case.  On the other hand, since Google Scholar relies on the Pacific Reporter for that information, decisions appear without their official citation until they have been published by Thomson Reuters and digitized by Google from that print source.  Compare the official version of Wilkeson v. State Farm Mut. Auto. Ins. Co., 2014-NMCA-077, with that provided by Google Scholar.

Exhibit No. 3: Oklahoma

Scholar’s treatment of Oklahoma decisions demonstrates that this need not be so.  The Oklahoma judiciary declared its online publication of appellate decisions official as of the beginning of 2014.  As with the others this reform did not alter Google Scholar’s reliance on the NRS as the ultimate source of Oklahoma’s case law.  Scholar continues to download Oklahoma decisions from the public site at the time of initial release, ignore the subsequent electronic versions designated as “official”, and replace the original files with digital copies of the texts once they appear in the Pacific Reporter.  There is one important difference.  Each decision’s medium neutral citation (e.g., “2013 OK CIV APP 105”) is displayed at the top from the beginning.

Exhibit No. 4: Arkansas

Official Arkansas case reports have been electronic since 2009.  That same year the Arkansas Supreme Court erased the distinction between published and unpublished decisions.  All decisions of the Arkansas Supreme Court and Court of Appeals now carry precedential weight.  Faced with the resulting surge in the volume of citable Arkansas decisions, Thomson Reuters, refused to publish them all.  Without guidance from the Arkansas courts, the company’s editors now select only a small percentage for print publication (less than 17% of the 2013 Court of Appeals decisions).  Those that appear in S.W.3d are digitized by Google Scholar (complete with internal pagination) from that source and substituted for the prior court-distributed version.  While Google’s digitization process retains the public domain case designations applied by the deciding court (e.g., “2013 Ark. App. 738”) it strips out another crucial citation element.  Although the NRS version displays the page breaks that appear in the official electronic case report, Scholar leaves them out.  For that reason its versions of Arkansas decisions, both those drawn from the official site and those based on the regional reporter, cannot be used to prepare pinpoint citations in the format called for by that state’s appellate rules.

Exhibit No. 5: Ohio

When the Ohio Supreme Court implemented a non-print citation system in 2002 it too removed the prior distinction between “published and unpublished” decisions.  Ten years later it abandoned print publication of all decisions from the Ohio Court of Appeals.  Since July 1, 2012 the official version of any decision of that court has been the authenticated electronic copy released by the Reporter of Decisions.  During 2013 the court’s twelve districts issued over 5,200 such precedential opinions.  Only 360 or so were selected by the NRS editors for publication in the North Eastern Reporter.  As with Arkansas, Google Scholar loads the entire set of Court of Appeals decisions, later adding  volume and page number cites to the indexing data for those decisions that appear in the regional reporter.  It does not, however, display the NRS reporter citation as part of the opinion.  As is true of the official cites in Illinois, these appear only as part of the listing of results delivered in response to a search.  Thus while a search on “992 N.E.2d 453” will retrieve State v. Venes, 2013 Ohio 1891 (Ct. App. 8th Dist.), that NRS citation does not appear within the opinion nor does Scholar show the NRS pagination.

Google Scholar’s Treatment of the Official Print Reports of California, Massachusetts, and New York Demonstrates that It Can Do Better

The Ohio example reveals that Google’s reliance on the Thomson Reuters reports does not reflect its approach to all U.S. jurisdictions, cost-effective though that might be.  After all, economy and efficiency might well argue for acquiring all case data from that single source.  Ohio does not stand alone.  In the case of several states that still publish their own law reports in print (or contracting for their publication) Google digitizes those reports rather than their NRS counterparts.

California, Massachusetts, and New York are among those “official report” states.  Importantly, these three employ distinct formats for internal citations.  To illustrate, as published in New York’s official reports, the New York Court of Appeals decision in De La Cruz v. Caddell Dry Dock & Repair Co., 21 N.Y.3d 530 (2013), cites a prior decision of the court as follows: “Brukhman v Giuliani (94 NY2d 387 [2000])”.  In the Thomson Reuters editions the citation to Brukhman v. Giuliani becomes: “Brukhman v. Giuliani, 94 N.Y.2d 387, 705 N.Y.S.2d 558, 727 N.E.2d 116 (2000)”.  As detailed in a prior post, such citation format differences make it easy to detect whether the decision texts for the jurisdiction have been drawn from its official reports or from the proprietary NRS.

Applied to Google Scholar this analysis establishes that it currently draws New York case data from the official reports.  Have a look at its version of De La Cruz.  Although the volume and page numbers at which that decision appears in the North Eastern Reporter and New York Supplement have been added so that users can extract a parallel cite, the format of the citations contained within Scholar’s version of De La Cruz decision, as well as the page breaks shown within the text, reveal the version to be a digital copy of the official report.  Similar citation analysis reveals that Google Scholar also relies on California and Massachusetts official reports for decisions from those states.  In other words, Google’s data acquisition process does not rest exclusively or consistently on the Thomson Reuters reports.

Drawing on the official reports of California, New York, and Massachusetts necessitates digitizing print.  But with states like Illinois and the others that have moved to official electronic distribution this is unnecessary.  Transposed to them, using the official version of decisions would avoid that costly process and require only two or three steps:

  1. Loading opinions as first released, include all citation data embedded in them (case cites, paragraph numbers, or when necessary, as with Arkansas, internal pagination). Google currently accomplishes this with Oklahoma and Ohio, but fails to do so for Arkansas, Illinois, or New Mexico.
  2. Second, if decisions are initially released in a preliminary or slip form, substituting their final, official versions, once available, again, retaining all citation data. Patently, Google follows this pattern in New York, California, and Massachusetts where that final, official version is brought out in print.
  3. Finally, adding a parallel National Reporter System volume and page number cite to the official medium neutral citation once it becomes available. Google’s process for decisions from New Mexico and Oklahoma, not to speak of the print publication states, New York, California, and Massachusetts, demonstrates that its data systems are capable of this step.

One can hope for the day when all U.S. courts publish their official reports electronically, allowing the full range of legal research services to redistribute final, official, citable copies, adding diverse levels and types of editorial enhancement, including their own citation schemes.  Jurisdictions weighing a shift toward that future ought to be encouraged.  More respectful recognition of the measures taken by states that have already gone digital is an essential first step.  Google Scholar, the dominant free source of U.S. case law, ought to lead the way.

Citations Generated by the Major Online Systems

Friday, November 14th, 2014

A recent post on the Legal Writing Prof Blog draws attention to Westlaw’s copy-with-reference feature. Its author raises a concern that the option to have citations formatted in the ALWD style still yields citations conformed to that manual’s fourth edition rather than the fifth edition, published earlier this year.  Since ALWD’s new version adheres to The Bluebook’s citation style in nearly all particulars, that problem is easily solved: The Westlaw folks need simply to remove the ALWD option.  However, those engaged in teaching legal writing and introducing law students to citation need to be attentive to numerous other imperfections in this WestlawNext feature and its LexisAdvance analog, as well as in the citations generated by other research services those 1Ls may employ once in practice.

copywithcite1

To begin, although the blogger writes of there being a Bluebook option, that label does not appear among the citation format options of either major service.  The default citation style offered by both Westlaw and Lexis is denominated “Standard”.  Is that due to trademark concerns?  For reasons set out in an earlier post, I doubt it.  The truth is that neither system consistently produces Bluebook compliant citations across the several types of authority and to suggest otherwise would be misleading.  “Standard” doesn’t make such a claim, although it appears it may lead legal writing teachers and their students, not to speak of lawyers and other online researchers, to believe that is the case.

One other point made in that short post arouses concern. Its author observes that because of this new and amazing feature “I can spend a little less time teaching citation format.”  For reasons explained in the latest version of Basic Legal Citation, I view that as a mistake. Let me point out a few reasons why a researcher who wants to employ Bluebook (or ALWD) conforming citations in a brief or memorandum will have to know enough to add, subtract, or modify those delivered by either Westlaw or Lexis.

1. Cases

As pointed out in an earlier post, a major attraction of any copy-with-reference function is that the case name segment of the citations it delivers will have been shrunk through the dropping and abbreviating of certain words.  Per The Bluebook a decision rendered in the matter of

Edward Mann and Holly Mann, Plaintiffs-Appellees, v. LaSalle National Bank, as Trustee under Trust Agreement dated March 22, 1960, and known as Trust No. 24184; Ellenora Kelly; John J. Waters; Irene Breen, as Trustee under Provisions of the Trust Agreement dated January 31, 1973, and known as Trust No. 841; Unknown Beneficiaries of Trust Agreement dated January 31, 1973, and known as Trust No. 841; and Unknown Owners, Defendants-Appellants

is reduced to “Mann v. LaSalle Nat’l Bank”.  Westlaw’s “Standard” format citation for the case is a close though not identical “Mann v. LaSalle Nat. Bank”.  Not The Bluebook’s “Nat’l” nor the “Natl.” favored by earlier editions of the ALWD manual and Bloomberg Law but “Nat.”, the abbreviation long employed by West Publishing Company.

Illinois has its own style manual.  It contains a very short list of names that are to be abbreviated in case names.  “National” is not one of them.  Consequently, citations to Mann by Illinois courts present the case name as “Mann v. LaSalle National Bank”.  One might expect that since Westlaw’s copy-with-reference offers an “Illinois” option choosing it would yield that result.  It doesn’t; the case name for this decision still comes out as “Mann v. LaSalle Nat. Bank”.  LexisAdvance also offers a choice between “Standard” and “Illinois” style citations when copying passages from Mann.  As with Westlaw they render the case name identically.  But in compliance with The Bluebook, Lexis abbreviates “National” as “Nat’l”.

A big deal?  Grounds for choosing Lexis over Westlaw?  Hardly.  I know of no instance of an attorney being chastised by a court for using non-Bluebook abbreviations and have argued that consistent use of those delivered by the writer’s online source ought to be a totally acceptable approach in professional practice.  With their tight attachment to The Bluebook, law journal editors are likely to disagree.

The bigger deal is how Westlaw and Lexis treat the balance of a case citation, particularly if the jurisdiction has, like Illinois, adopted a system of non-print-based citation.  Take the recent case of Brandhorst v. Johnson.  In decisions of Illinois courts and briefs submitted to them a reference to a particular passage of that case in the form ”Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶ 57” would be complete.  The Bluebook insists that a reference to the National Reporter System (“12 N.E.3d 198, 210” in the case of that passage of Brandhorst) be included in parallel.  When the paragraph in question is copied from WestlawNext with its citation in “Standard” format the paragraph number is not included in the cite.  (LexisAdvance includes it.)  Westlaw does not include the parallel N.E.3d cite in either the “Standard” or “Illinois” style citations for the case. Lexis includes it and adhering to The Bluebook includes a pinpoint page reference.  However, Lexis departs from The Bluebook by throwing in the totally unnecessary “382 Ill. Dec. 198, 206” when the “Standard” format is chosen.  Westlaw’s “Illinois” style citation for the case adds the parenthetical “(Ill. App. Ct. 4th Dist. June 11, 2014)” which none of the style manuals calls for.  The Illinois style guide explicitly states that there is no need for a citation to identify the appellate district “unless that information is of particular relevance to the discussion”.  (Moreover, since the district number is part of the jurisdiction’s public domain citation system, with any recent case like Brandhorst its repetition in a parenthetical wastes space.)  In sum, neither Westlaw nor Lexis delivers a Bluebook cite for this case.  Neither delivers an “Illinois” format citation that conforms to the state’s style guide.  Users who would conform their writing to either of those citation standards need to modify or add to what those online systems serve up programmatically along with a copied passage.

2. Statutes (and regulations)

A provision of the Social Security Act with considerable contemporary relevance is to be found in 42 U.S.C. § 416(h)(1)(A)(ii).  Copy its language with citation from Westlaw and what you get is “42 U.S.C.A. § 416 (West)”.  Lexis renders its citation as “42 USCS § 416”.  Neither service is prepared to yield its branded designation of the U.S. Code to the conventionally used generic or official format.  Neither includes a date or other indication of the currency of the compilation The Bluebook calls for.  And critically, neither provides the absolutely essential subsection and paragraph identifiers that specify the portion of 42 U.S.C. § 416 one is copying.  The blocked text may include “(ii)” but that alone is not enough.  The same failure to reach below the section level holds with citations to regulations.

3. Conclusion

At their current stage of evolution none of the major research services (including not only Westlaw and Lexis, but Bloomberg Law, Fastcase, and Casemaker) can be relied upon to produce primary law citations that fully comply with The Bluebook or, indeed, any of the other citation styles they may list.  In any setting where citation format is critical, users need to know that.  And all researchers need to be aware that the citations of statutes or regulations these systems generate will often be seriously incomplete.

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

Thursday, February 13th, 2014

1. “Official” Digital Case Law

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

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

2. Implications for Citation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Official Digital Case Law and Authentication

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

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

official2   official3

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

Annotated Bibliography on Neutral Citation and Standardized Markup

Monday, February 10th, 2014

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