Posts Tagged ‘statutes’

How Should One Think about (and Cite) the U.S. Code?

Monday, December 4th, 2017

I. A Few Recent Changes to the United States Code (Virtual or Generic)

A. The Addition of a New Title

On September 1, 2017 the Office of the Law Revision Counsel, U.S. House of Representatives (OLRC), released a Title 34 of the U.S. Code. It contains no new law. All of Title 34’s provisions had been filed elsewhere in the Code, a fair number of them in the form of notes. The editors of the official code simply gathered the growing number of statutes dealing with “crime control and law enforcement” and organized them into this new location. The results are to be found at the Law Revision Counsel’s online edition.

http://uscode.house.gov/browse.xhtml

The new title is also available in the constantly updated online editions of the U.S. Code offered by LexisNexis, Westlaw, and Cornell’s Legal Information Institute (LII). In dramatic form this poses the question: How should one think about and cite to a provision of the U.S. Code or any of its state counterparts? Is it appropriate to use the new code architecture and cite a 2001 law authorizing the Justice Department to develop and support computer forensic laboratories as “34 U.S.C. § 30102”? (It was previously stashed in a note to 28 U.S.C. § 509.) If not now, when will it be?

B. The Addition of New or Amended Provisions

The same question is posed less starkly each time a new statute of general and permanent applicability becomes law. On August 23, 2017 the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, became law. It amended numerous sections of Title 38 of the Code, one of the 37 titles that Congress has enacted into positive law. Two of the amended provisions are subsections (e) and (f) of 38 U.S.C. § 5103A. Although enacted those changes do not take effect immediately. (That is to happen only “on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs ….”)

Five days earlier Pub. L. No. 115-50 amended Section 3 of the DNA Analysis Backlog Elimination Act of 2000, which had been codified by the Law Revision Counsel in Title 42, one of the non-positive law titles, as 42 U.C.C. § 14135a. With the establishment of Title 34, however, that section including the amendment moved to 34 U.S.C. § 40702.

These changes were swiftly incorporated by the Office of Law Revision Counsel into its online version of the Code. (See its pages for 38 U.S.C. § 5103A and 34 U.S.C. § 40702.)  Following standard practice, 38 U.S.C. § 5103A contains notice of the delayed effective date of the 2017 amendments in an appended note.  From the OLRC site the titles, as revised, were picked up and incorporated immediately into the federal statutory compilations maintained by the major online legal information providers. (See, e.g., the LII’s versions of  38 U.S.C. § 5103A and 34 U.S.C. § 40702.) The OLRC offers bulk downloads in a range of formats (XML, XHTML, PCC, and PDF) to facilitate this rapid republication.

II. Their Delayed Appearance in the United States Code (Physical)

The compilation maintained by the Office of the Law Revision Counsel (OLRC) and available online to both the general public and law publishers is the ultimate source for a set of books put out by the Government Publishing Office (GPO). Every six years the OLRC publishes and the GPO prints a fresh edition.

United States Code (2012 edition)

The next edition to appear will carry a 2018 date, but it will not be produced and delivered until well into 2019 and 2020. In between editions there are annual supplemental volumes. They cumulate all changes made up to their cutoff date. The changes noted above will be contained in Supplement V to the 2012 edition of the code likely to be available in late 2018. Volumes and the annual supplements are produced sequentially so that titles with lower numbers and supplements to them appear in print sooner than, say, Titles 34, 38, or 42. As the print volumes are produced an electronic replica in PDF is placed, with authentication at the GPO website, in its FDsys (Federal Digital System) collection. Unlike their print counterparts, these files do not separate statutory text and notes into core volume and cumulative supplement. When the 2017 version of Title 38 appears at the FDsys site in late 2018 it will contain the full title as amended through the beginning of the year.


Authentication of Supplement IV Containing Title 38

III. Ought One to Cite to the Virtual or Generic United States Code?

A. What Do the Leading Manuals Say?

Citation manuals also appear in periodic editions.  This fall brought a new, sixth edition of the ALWD Guide to Legal Citation. (More on this Bluebook competitor in a later post). Tracking the fifth edition it states in Rule 14.1:

Federal statutes are cited either to the official print version of the United States Code (preferred, although it is rarely up to date …) or to the authenticated online version of the code in the Government Publishing Office’s Federal Digital System (“FDsys”)…. Cite an authenticated federal statute in FDsys the same way you cite it in print.

Like The Bluebook, which it essentially mimics on this point and most others, the ALWD guide appears to forbid citation to any of the revised portions of the Code noted above in the format “__ U.S.C. § __” until they have been published by the government in print or the authenticated digital replica. In the interim, for new law, citations to print session laws (or presumably their digital counterparts) are preferred. For a revised packaging of prior law, such as the new Title 34, guidance is less clear. Neither manual has adjusted to the availability of a continuously updated version of the code directly from the public body responsible for its publication.

B. What According to Prevailing Professional Usage Does a “U.S.C.” Citation Represent?

Some time ago, in discussing whether The Bluebook‘s copyright extended to the system of citation it codified, I cited 17 U.S.C. § 102(b), which reads:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Does the citation of “17 U.S.C. § 102(b)” as the source for that passage represent that I reviewed its text in the GPO print publication or on FDsys? Both the Bluebook and ALWD Guide appear to say so.  (Had I used Westlaw as my source they would have the cite read “17 U.S.C.A. § 102(b)”.) My intention and, I would argue, the widely understood meaning of the form of my citation was only to identify the location of the quoted passage in any of the many reliable, up-to-date versions of the Code.

In addition to their attachment to print the two academic citation manuals reflect the continuing strong influence of Thomson Reuters and Reed Elsevier. Both manuals allow citation to those companies branded versions of the United States Code (U.S.C.A. and U.S.C.S.) as a fallback. The ALWD Guide to Legal Citation explicitly places them ahead of named commercial alternatives (including Bloomberg Law and Fastcase) and ignores the leading noncommercial source (LII). On what grounds? Revealingly neither mentions the OLRC’s online version of the code on which all others are based.

C. The Use of “U.S.C.” as a Generic Reference

Long ago when the only statutory compilations were those published in print, alternatives could be counted on a few fingers, and publication lag was substantial and varied among them, a requirement that a statutory citation reveal which version the writer had relied upon was defensible. No longer. In 2017 “U.S.C.” amounts to a generic designation, almost certainly employed by the reader to find the cited provision not in the GPO book but in some online database, very likely one different from that used by the writer. Federal judges whose opinions reveal their reliance on Westlaw by the prevalence of “WL” citations to “unpublished” cases cite the Code generically.

D. Brand Reinforcement as a Vestigial Counterforce

A subscriber to Bloomberg Law who takes advantage of its “copy with citation” feature receives that citation in generic format, “__ U.S.C. § __”.  However, a Westlaw subscriber using that service’s “Copy with Reference” feature is furnished a “U.S.C.A.” citation, and “advanced copy” on Lexis cites the same section to “USCS”. Because of such “citation assistance” and the durability of citation habits forged in the print era, citations to those two commercial compilations still appear occasionally in briefs and judicial opinions. Rarely are they used selectively, i.e., limited to provisions not yet available in the print United States Code. Typically, a judge or lawyer who cites to U.S.C.A. or USCS today does so throughout a brief or opinion. See, e.g., HSP v. JK, 223 N.J. 196 (2015), Bank of America, NA v. Camire, 2017 ME 20.

IV. Indicating Chronological Version as Distinguished from Source

When Congress has injected new law into a positive law title of the Code or passed new law that the Office of Law Revision Counsel has compiled into one of the non-positive law titles and when the OLRC has gathered existing statutes into a new title, it is critical that a U.S. Code citation not generate confusion. Does it refer to the Code as it stood before or after the change? In most lawyering settings, a citation to the Code carries the implicit representation that the writer is referring to the Code as it stood when the brief was submitted or the opinion written. (Journal articles, the prime concern of The Bluebook and ALWD Guide to Legal Citation, carry no such clear “as of” date and therefore pose a greater risk of version uncertainty.) A citation to 34 U.S.C. § 30102 will frustrate any reader looking for the section in the GPO’s print or online version of the code. On the other hand, when entered in Google or any of the major online databases it will yield results. The exceedingly cautious writer can add an explanatory parenthical such as “(Prior to the 2017 codification of Title 34 this section appeared as a note to 28 U.S.C. § 509.)”

Citation Software

Monday, January 4th, 2016

Citations and Software – A Long and Vexed Relationship

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

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

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

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

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

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

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

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

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

Some Reasons for Programmers to Love The Bluebook

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

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

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

Grounds for Programmer Frustration with The Bluebook

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

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

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

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

Friday, August 28th, 2015

The Issue

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

Cases

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

Statutes, Constitutions, and Court Rules

What The Bluebook Says

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

What Judges and Lawyers Do

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

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

Instead the opinion will almost certainly cite the provision generically:

  • 17 U.S.C. § 301(a).

As will briefs submitted in the case.

Commentary

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

The Rule that Should Swallow its Exceptions

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

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.

Judges Revising Opinions after Their Release

Tuesday, April 29th, 2014

A. Background: How legislatures and agencies handle revision

1. Revision by Congress

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

tech_correction

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

2. Agency typos and omissions

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

revised_reg

B. Judicial opinions – An altogether different story

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

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

 erratum

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

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

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

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

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

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

sct_revision

More disturbing, by far, are:

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

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

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

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

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

1. Minimize or eliminate post-release revision

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

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

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

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

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

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

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

 

What does the start of a new year mean in legal citation?

Tuesday, January 7th, 2014

A year change prompts reflection on the roles dates play in legal citation. I use the plural “roles” because of the diversity of functions dates serve in citations.  With some sources they are largely superfluous; with others, they are critical to retrieval.

Cases

As noted in a prior post, the full date of release is a crucial part of the identifying data for any unpublished opinion. Among the decisions released this week by the Second Circuit is one that should now and into the future be cited as: Wager v. Littell, No. 13-1683-cv (2d Cir. Jan. 6, 2014).

In all U.S. jurisdictions that have adopted systems of medium neutral case citation, the year of a decision is an integral part of its cite or retrieval tag. The decision, People v. Radojcic, 2013 IL 114197, would have been designated 2014 IL 114197, had it been released by the Illinois Supreme Court during the early part of 2014 rather than on Nov. 21, 2013. On Dec. 23, 2013, the Colorado Supreme Court released its opinion in People v. Cunningham, 2013 CO 71. Had it instead been the court’s first decision of this month it would have been 2014 CO 1. (Illinois and Colorado employ different systems of designating decisions rendered within the year.)

In a majority of U.S. jurisdictions, however, the year of a precedential decision is not critical for identification or retrieval. Nonetheless, it is routinely included as one element of a complete case citation. Thus, when a 2013 decision of the U.S. Supreme Court cites an earlier decision, that decision is identified as Trainor v. Hernandez, 431 U. S. 434, 443 (1977). Why include the year? “431 U.S. 434” provides all the information one needs to retrieve that earlier decision from any database or library shelf? The reason presumably is that knowing the year of a decision may help a reader to decide whether to look at it. It provides useful but not critical information.

Finally, it may be worth noting that the year incorporated within a decision citation is not the year that the case was compiled into a print volume or that the volume was finally published but rather the year the decision was issued.

Statutes

Citations to session laws generally include the year of enactment. Indeed, the year is often part of an act’s name. If the legislation has not been named, its full date will be employed for that purpose, as, for example, “Act of Dec. 9, 2013”.

What to do when citing to a section of a jurisdiction’s codified laws is bit of a puzzle. Should a year be furnished and, if so, what year? Now that the year is 2014 has section 110 of title 17 of the United States Code become 17 U.S.C. § 110 (2014)? Is that a function of the cutoff date of the writer’s source?

The most recent print version of 17 U.S.C. § 110 published by the Government Printing Office appears in a set denominated the 2012 edition. However, since that edition extends through the term of the 112th Congress it, in fact, includes laws passed and signed into law in the early days of 2013. The volume in which 17 U.S.C. § 110 appears was printed in 2013. Other volumes of the 2012 edition have yet to appear.  Westlaw doesn’t provide an “as of” date for this or other sections of the U.S. Code but it does report that the most recent amendment of this particular section took effect on April 27, 2005. Lexis represents that its version of the U.S. Code is “Current through PL 113-57, approved 12/9/13.” The LII notes of its version “Current through Pub. L. 113-52” without providing a date. However one interprets of The Bluebook’s prescription on this point, it definitely calls for some date to be appended to 17 U.S.C. § 110, in parentheses.

The more sensible approach, at least in legal writing produced by or for courts, is that followed by the U.S. Supreme Court. So long as an opinion of the Court is referring to sections of the code currently in effect, its citations include no date element. The lower federal courts follow the same practice as do most lawyers submitting briefs to federal courts. One also finds dateless statutory citations in the appellate decisions and briefs from such prominent states as California, Massachusetts, New York, Pennsylvania, and Texas.

Only when the provision being cited has, by the time of writing, been repealed or amended or has only recently been enacted does it become important to specify the date of a compilation that contains the language being cited. The precise form this takes will necessarily be governed by the form in which that compilation presents its cutoff date, and it ought to report the compilation date not the year that compilation appeared in print or online.

Regulations

The considerations bearing on citations to regulations appear very much the same. However, professional practice is less consistent. Justices of the U.S. Supreme Court and judges of lower federal courts will often include the year of compilation for a Code of Federal Regulations provision in an opinion’s first citation to it, leaving the year off all subsequent references. Arguably, for as long as annual print compilations constituted the principal source for codified regulations that approach furnished useful information. Today, with constantly updated compilations maintained not only by commercial online services but the Government Printing Office, it makes better sense for both writer and reader to understand that a citation in a brief or opinion to 37 C.F.R. § 205.22 refers to the provision in effect at the time of writing. With a section that has not changed since 2008, the addition of 2013 or, as of last week, 2014 in parentheses serves little purpose. For that reason many judges and lawyers would cite to 37 C.F.R. § 205.22 (or a state equivalent) without indicating a year, again, unless the litigation concerned an earlier version or the regulation in question has undergone recent change.

Commentary

Dates are far less precise and therefore less useful in citations to journal articles. Because publication delays are common with student-edited journals, numerous articles that failed to appear in 2013 will nonetheless carry that date.  Many destined to appear in 2014 last received attention from their author or an editor in 2013. Judicial opinions, legislative enactments, and regulations all carry specific release or effective dates.  Individual journal articles do not. Notwithstanding the imprecision and limited utility, attachment of the nominal year of publication to article citations is accepted practice.

The same holds for treatise  citations with greater reason and despite a further difficulty. Most major treatises have been acquired by an online research service and are bundled with the service’s primary law materials.  In both print and online form they are updated at least annually. In print, the updates may be integrated, the case with treatises published in a looseleaf format, or they may be issued in a separate supplement.  Online, they are integrated without any indication of what was changed or when. Under these circumstances, how should one date a section of A. Wright, A. Miller & M. K. Kane, Federal Practice and Procedure or M. Nimmer & D. Nimmer, Nimmer on Copyright in a brief or opinion prepared during 2014? Should that depend on whether one accessed the material in print or online? Assuming that one is citing to the current work rather than a prior edition or version, the best practice is to cite to the year of the most recent update or revision of the source relied on. Following that practice one would in January 2014 still use the year 2013 for both those works since they were last updated during that year, a fact noted in their print and electronic versions.

The updating phenomenon bestows greater importance on the date associated with a treatise citation. Unlike journal articles these are not static works. A reference to a particular section as it existed some years ago, 2004 say, or 1994, may well, if followed into the current version of the treatise, take the reader to significantly different text . The year accompanying the citation provides a reminder of that reality even though it may be difficult verging on impossible for those working in a contemporary research environment to determine exactly how the cited section read in 1994 or 2014. Neither Lexis (Nimmer & Nimmer) nor Westlaw (Wright & Miller) archive past versions of their treatises online as they do past statutory codifications.

Cite thoughtfully in 2014!

 

 

Nowhere versus generic citations

Friday, November 1st, 2013

A recent New York Times piece on the prevalence of non-functioning links in Supreme Court citations (a topic for another day) carried the headline: “In Supreme Court Opinions, Web Links to Nowhere.” The phrase brought to mind the fierce attack mounted by the late West Publishing Company during the mid-nineties against proposals to replace that publisher’s dominant system of proprietary, print-based citation of U.S. case law with vendor- and medium-neutral citations. At the time West’s representatives repeatedly characterized citation identifiers applied by the issuing court as “citations to nowhere” or “nowhere citations.” They asserted that the approach, then and still, advocated by the American Association of Law Libraries and American Bar Association “provides absolutely no clue that helps the researcher to identify the publication, CD-ROM, or online service where she can actually find the opinion.”

Artfully, the argument conflated two quite distinct goals for a citation system – one central, the other secondary and often sacrificed to competing values. As explained in § 1-200 of Basic Legal Citation: a functional legal citation must, within limited space, “provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer).” A second and separate principle would call for disclosure of the writer’s actual source. In a much cited 1982 article on citation theory and practice, Paul Axel-Lute placed the latter citation principle dead last in his list of thirteen, a set which he noted carried inevitable conflicts.

As the Axel-Lute article observed this “writer disclose your source” principle is, in numerous settings, trumped by the principle of “brevity” and also overridden by rules calling for citation to “official” sources (whether or not in fact used by the writer). Noting that longstanding practice, codified in The Bluebook, which had just then appeared in its thirteenth edition, did not require specification of source in citations of court rules, Axel-Lute surmised this was because they “are found in a multiplicity of sources.” He observed that the same held for citations to the Constitution.

In the early 1980s case law was not available from a “multiplicity of sources” and a case citation in the format “___ F.2d ___, ___” at once directed readers to the cited passage and indicated the writer’s use of a specific source. Four decades later “multiplicity of sources” characterizes access to nearly all types of primary legal materials in the U.S., and such a citation cannot reasonably be understood as representing that the writer has read the decision in the pages of a particular printed volume or even in the digital replica sold online by the same publisher. Today, with few exceptions, cases and statutes are available from “a multiplicity of sources,” some free to all, others free to all members of a state bar, and still others wrapped in costly layers of added value. So long as a citation to a judicial opinion or statutory section enables a reader to retrieve the document from her preferred source there is no more need for the writer to declare his source than with a constitution provision or court rule.

In this environment of many competing sources, proprietary citations are more likely than those appended by the issuing court, legislative body, or agency to give rise to problems of access. Consider the recent decision of the Indiana Supreme Court interpreting that state’s statute on grandparent visitation rights, J.C. v. J.B., 991 N.E.2d 110 (Ind. 2013). As already noted, although the foregoing citation is derived from a specific print publication, no reader of this blog should take my use of it as representing that I relied on that source. In fact I first came upon the decision on Lexis. Prevailing citation norms do not, however, call on me to declare that. Nor does the formula “991 N.E.2d 110”, which conforms to the pattern specified by the major citation manuals and Indiana’s own rules of appellate procedure, drive the reader to a particular source. Ultimately, it will enable retrieval of the decision from all major legal research services including Casemaker, a system that is free to all Indiana Bar Association members. Unfortunately, however, since it is not the product of a system of court-applied citations, “991 N.E.2d 110” did not travel along with the opinion when it was added to all those databases. The decision was handed down on July 18, 2013. North Eastern Reporter volume and page numbers were not attached to it on Westlaw until roughly a month later.  At that point all other databases confronted the task of matching the Thomson Reuters cite and the corresponding internal pagination with their copy of the Indiana decision.  Until that is done “991 N.E.2d 110” cannot be used on them to retrieve the case nor can that citation be drawn from them by the writer of a brief or subsequent opinion.  Casemaker did not make that match until mid-October.  And as of this writing “991 N.E.2d 110” still draws a blank on Google Scholar (even though it holds the case).  Google Scholar has integrated volume and page numbers with opinions Thomson Reuters has allotted to “898 N.E.2d” but as yet none from “890 N.E.2d” or “891 N.E.2d.”

Consider also the statutory provision at issue in J.C. v. J.B. It  is cited by the court as “Ind. Code § 31-17-5-1.” On Lexis that section is presented as “Burns Ind. Code Ann. § 31-17-5-1.” Westlaw identifies the same provision as part of “West’s Annotated Indiana Code.” Both titles match those of copyrighted print compilations marketed by the respective companies. Were one to take the “writer disclose your source” principle seriously even a citation to “Burns Ind. Code Ann.” would have to indicate whether it referred to the publisher’s print or electronic version. Somewhat ambiguously The Bluebook instructs a writer to cite to “Indiana Code … if therein” rather than to either commercial version, but does it mean a specific “Indiana Code”? Although the Indiana Legislative Services Agency maintains an up-to-date compilation of the state’s statutes with that title at: http://www.in.gov/legislative/ic/2010/, it is good bet that the Indiana lawyer who complies with the state’s rules of appellate procedure and cites to Ind. Code § 31-17-5-1 has secured its text from Lexis, Westlaw, or Casemaker rather than from that public site.

During the print era it was, in many settings, important for a statutory citation to indicate the specific source relied on by the writer, but today “Ind. Code” and the equivalent in other states are generic references. They are identifiers that enable retrieval of the relied upon text from a multiplicity of sources rather than a signal that the writer has consulted a particular one.  The major citation manuals and some state rules are not clear on this point, largely because they remain stuck in patterns shaped by print.

There are still some situations where the “writer disclose your source” principle merges with the core task of facilitating the reader’s retrieval of the cited text, where indicating source avoids the risk of a “nowhere citation” or misdirection.  In the present environment, however, generic citations of cases and statutes are the norm. Traditional formats that imply reliance upon a particular source too often consume unnecessary space, impose costs and delay, and run some risk of confusion.

Statutes – Citation norms that reinforce copyright claims

Monday, October 21st, 2013

The uncertain copyright status of compiled state statutes has long been a factor in the competitive legal information market.  Private publishers have asserted copyright ownership of their own compilations, with and without editorial additions such as annotations.  States have asserted copyright on their own behalf in order to control the terms on which their codified statutes are published and to furnish privileged, if not exclusive status, to an “official” edition.  While the Copyright Act speaks with clarity to the U.S. Code through a provision (17 U.S.C. § 105) that excludes from copyright “any work of the United States Government” no comparable provision speaks to state legal materials.  Rulings that they must be viewed as in the public domain rest on more general principles, arguably of constitutional origin. See, e.g., Veeck v. Southern Building Code Congress Int’l, Inc., 293 F.3d 791 (5th Cir. 2002).  A recipe long used to attach proprietary claims to the public material of law has been to surround it with editorial matter – headnotes for judicial opinions, annotations to statutes – and publish the composite with copyright notice and registration.  Such a composite is published for the State of Mississippi in both print and electronic form by LexisNexis under the title, Mississippi Code of 1972, Annotated.  Pursuant to a Mississippi statute the publisher has copyrighted that work on behalf of the state.  Recently, a non-profit dedicated to securing public access to law and other public materials, Public.Resource.Org, placed a digital copy of Mississippi’s code, annotations and all, on the Internet.  The state attorney general’s office demanded their removal.  Public.Resource.Org refused.  A copyright issue of major importance appears to be joined.

A less conspicuous citation question runs in parallel with the copyright issue.  How should a lawyer, judge, or commentator cite to the legislative provisions that frame this case?  The citation guides from which most U.S. law students are taught reinforce Mississippi’s copyright claim by requiring that Mississippi statutes be cited to the “official” Mississippi Code of 1972, Annotated abbreviated “Miss. Code Ann.” if they are to be found within it.  Presumably, the only way to determine whether they are in it is to use that copyrighted version.  If the writer uses the competing “unofficial” compilation prepared by Thomson Reuters and marketed under the West brand, she is instructed to acknowledge that in the cite.  Both guides express a print-era view that statutory citations should not simply furnish a generic formula that will enable a reader to access the text in whatever source she has available but ought to specify the particular source used by the writer, with that source being, if at all possible, the state licensed and copyrighted version.  Whatever rationale this rule had during the era of limited print options has long since evaporated with the proliferation of up-to-date digital compilations.  No matter what the academic manuals say, a lawyer citing a Mississippi statute to a Mississippi judge or a federal one is not compelled by the relevant rules of appellate procedure to indicate whether he found its text on Westlaw, Lexis, Bloomberg Law, or Casemaker (the latter being the legal research service available without charge to all members of the Mississippi Bar).  A judge’s citation may read “Miss. Code Ann.” but that format is the result of habit – very likely a misleading one in view of the probability the judge will in fact have read the cited provision on Westlaw rather than in the licensed code published by LexisNexis.  (Among citations to unpublished decisions by Mississippi appellate judges, the ratio of proprietary “WL” to “LEXIS” citations runs overwhelmingly in Westlaw’s favor.)

Following the widespread contemporary practice of citing statutes in a generic form, let me draw attention to the incredible breadth of the copyright claim asserted in Miss. Code § 1-1-9(2) (added in 1996 as the state prepared the ground for a new publication contract) and the astonishing ownership assertion backed by a stiff fine in Miss. Code § 1-1-9(3) (appended in 1998 but surely preempted by 17 U.S.C. § 301).  Finally, when the successful bidder, LexisNexis, was faced with competition from an “unofficial” code offered to past subscribers for free by the prior holder of the official franchise, Thomson Reuters, the Mississippi legislature passed yet another provision purporting to claim ownership of the code’s (purely descriptive) title.  See Miss. Code § 1-1-8(2).  (For these provisions, I am unable to link to the Lexis site providing free access to an unannotated version of the Mississippi Code because, as the Public.Resource.Org letter notes, it is inhospitable to links.)

It is notable that the letter from the Mississippi Attorney General’s office to Public.Resource.Org neither quotes from nor cites these provisions.  The claim it states is framed far more narrowly.  Moreover, the letter endorses the 8 Principles of Open Government Data. The next step should be for the Mississippi Legislature to bring its code into compliance. No such act is required, however, for judges, lawyers, law students, and others to begin citing Mississippi statutory law using the generic “Miss. Code” rather than the proprietary “Miss. Code Ann.”