Open and Timely Access to Final, Official, Citable U.S. Caselaw: A Progress Report

August 23rd, 2024

Court-Applied “Neutral Citation”: A Reform Idea Born When the Internet Was Young

For three decades, appellate courts in a growing number of U.S. jurisdictions have taken advantage of digital technology to distribute their decisions on the Internet in final and complete form, accompanied by all the identification markers that their rules require in later court filings citing one of them.  For many, this ended dependence on a single, dominant commercial firm for official caselaw publication, a firm that had, with remarkable success, fought off emerging digital competition through the assertion of copyright in the printed case report volumes it published. (That assertion rested on the volumes’ organization and the company’s editorial additions.)  Court-applied case citations promised to be “non-proprietary,” and therefore “vendor-neutral,” as well as “medium-neutral” (i.e., not book-dependent). Official, citable online publication also promised elimination of the, sometimes lengthy, delays produced by rules and norms that called for the identification of judicial opinions and their key passages through use of volume and page numbers drawn from books that were not complete until they contained several months, if not full terms, of judicial output. 

Thirty years ago, in 1994, the Supreme Court of Louisiana led the way.  The same year Wisconsin’s Supreme Court held a hearing on a similar plan, urged upon it by the state bar, but backed away from implementation in the face of fierce opposition organized by the country’s dominant caselaw publisher.  In 1995, the American Association of Law Libraries endorsed a report recommending non-proprietary” case citation and providing detailed guidance on implementation.  The ABA promptly added its support, with the endorsement of the U.S. Justice Department.  In the years that followed, implementation proceeded, but at a halting pace, across state and federal courts.  Moreover, where and when it occurred, that reform took a diversity of shapes.  As a result, hopes for a universal or uniform non-print-based, non-proprietary system of U.S. case citation were swiftly dashed. (Citation reform efforts in Canada and Great Britain proved far more successful.)

Even where adopted, systems of neutral citation were often compromised. Some state courts that commenced releasing their opinions in digital format, accompanied by non-print identifiers and paragraph numbers, continued to specify that the versions later published in print be considered the final and official ones, warning that they might contain revisions.  Many required that case references in court filings contain print-based, volume and page number citations in addition to the court-attached “neutral” identifiers.  (During the mid-1990s, significant numbers of lawyers and judges still conducted at least portions of their final caselaw research and analysis in the pages of law report volumes pulled from a library shelf.)

Virtual Case Reports: An Alternative

In recent years a less conspicuous model of reform has emerged — the substitution of virtual case report volumes for print ones.  For jurisdictions that had retained public control of caselaw publication, rather than ceding that task to a commercial publisher, the plummeting demand for printed case reports posed a serious fiscal challenge.  And that challenge often produced lengthy delay.  In 2017 Nebraska shifted from seriously tardy print publication to timely electronic release of the Nebraska Reports and Nebraska Appellate Reports.  The state’s appellate decisions continue to carry and be cited by volume and page numbers, but from the moment of initial release Nebraska decisions carry the volume numbers and pagination by which they will always be cited.  Steps taken since 2021 by the Reporter of Decisions of the U.S. Supreme Court point in the same direction.

Progress as of 2024

The recent changes at the nation’s highest court prompt this review of the uneven success of the thirty-year effort to persuade U.S. courts to publish their decisions electronically, in a non-proprietary, final, official, citable form.

Overall, the view is disappointing.  To begin with the lower federal courts, but for one lonely exception neither the U.S. Courts of Appeals nor the U.S. District Courts have budged from their historic reliance on print reports prepared by a single firm, one now owned by the Canadian-based multinational Thomson Reuters. Turning next to the states, the high courts of over half of them (twenty-seven) still specify that the versions of their opinions appearing in proprietary print publications, also published by Thomson Reuters, are the official ones and require citation using their volume and page numbers once attached.  In the case of most, Thomson Reuters produces and sells volumes devoted solely to decisions of that one state. For a majority of that group (fourteen states) the decisions in those single-state volumes are simply extracted from the company’s National Reporter System and carry the volume numbers and pagination of the parent, multi-state series.  Beyond providing a framework for citation and a traditional component of law office decor, these books themselves see little use. Mainly, they comprise a print archive of texts that nearly all lawyers and judges access online. However, since they constitute the official source of final decision texts and citation parameters for decisions of a majority of state judicial systems, plus the entire federal judiciary below the Supreme Court, firms that compete with Thomson Reuters in the online legal information market must either license data from that company (the case with LEXIS) or buy its books and incur the cost of extracting data from them.

In addition to Nebraska, a few other states have begun publishing their case reports online, compiled into virtual volumes.  They include: Colorado, Connecticut, Massachusetts, New Hampshire, and North Carolina. (In Colorado, a recent statute propelled the change.)

North Carolina presents a curious case.  In late 2019, the North Carolina Supreme Court adopted a non-proprietary, non-print-based citation scheme, effective at the beginning of 2021.  The system was used.  Cherry Cmty. Org. v. Sellars, decided in May 2022, was designated 2022-NCSC-62, and its paragraphs were numbered.  Later that year, a partisan judicial election (the hot issue being gerrymandered districts) altered the political balance on the court.  In January 2023 the earlier order was rescinded, and the court reverted to volume and page citation.  Allegedly, paragraph numbering, practiced by the North Dakota Supreme Court for nearly three decades and by over a dozen other state courts for shorter periods, proved too burdensome for North Carolina’s justices and court staff.

Some Models of Reform

For any jurisdiction considering the provision of direct public access to its case law, there are a range of exemplary models.  The Illinois appellate courts, which have employed medium-neutral citation since 2011 and authenticated their online decision texts since 2016, furnish one.  Neither court rule nor the Illinois Supreme Court’s own citation practice suggests the need for a parallel citation to the proprietary volumes in which those decisions also appear. As a result, other online legal information services, whether employing conventional search technology or the latest in AI, can offer Illinois decisions, in their full, final, citable form back to the state’s earliest days.  (Citable public domain versions of earlier Illinois decisions, as well as those of the other forty-nine states, are available in digital format from Harvard’s Caselaw Access Project.)  Two states with medium neutral citation schemes, New Mexico and Oklahoma, have applied those schemes to all past decisions. Each now offers a comprehensive caselaw database for direct public access.  Several states that have retained control over the production of official print case law volumes have also established public access sites offering full historic collections.  Examples include: Colorado, Nebraska, and North Carolina. The two states with the most lucrative legal information markets, California and New York, continue to secure substantial technical and editorial services under publication contracts that provide public access to a full database of “official” case law, although on terms that effectively block data-harvesting by competing legal information services.

Why Has Progress Been So Slow and Uneven?

For appellate judges and those who serve them, the judiciary’s role as a source of authoritative public legal information can seem far less salient than their responsibility to resolve an unending stream of controversies in the light of all pertinent law. That perspective tends to focus attention on the legal information resources at the court’s disposal, and away from the quality and cost of access to the case law it generates.

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Posted in Cases, Copyright, Neutral citations, Official | No Comments »

Update on the Initiative Noted in the Prior Post

August 1st, 2024

The article noted in the preceding post assessed the Supreme Court Reporter’s initiative reducing the lag in attachment of official citations to the Court’s decisions, as of January 2024. The intervening months have seen significant progress. As of August 1, 2024, all the slip opinions of the October 2022 Term and before have been converted to the format in which they will appear in the U.S. Reports, complete with volume and page numbers and editorial revisions. Decisions of the 2023 Term through McIntosh v United States, 601 U.S. 330 (4/17/2024), along with scattered decisions through Garland v. Cargill, 602 U.S. 406 (6/14/2024), have also been moved to U.S. Reports format. No doubt the balance will follow through the summer.

The ritual of citing orders granting certiorari by volume and page number continues to yield citations in the format “See 598 U. S. ––– (2023)”. However, a higher proportion of current citations of opinions from immediately prior terms are now complete. Many citations to earlier decisions of the current term remain in skeletal form (“See, e.g., Fischer v. United States, 603 U. S. –––, ––– (2024) (slip op., at 2) “).

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The Supreme Court’s New Reporter of Decisions Confronts the Court’s Huge Backlog of Unpublished Decisions

March 14th, 2024

This blog has periodically pointed to the steadily growing lag between the release of U.S. Supreme Court decisions and their official publication with the volume and page numbers needed for citation. The first such post was in 2014, over ten years ago, focused on the: Costs of the (Increasingly) Lengthy Path to U.S. Report Pagination. A second, in 2016, asked: Better Never than So Very Late? Both referred to state court initiatives that provided possible models for addressing the issue. A 2018 post contrasted the Supreme Court’s continued reliance on (seriously delayed) print publication with the government’s up-to-date electronic publication of the U.S. Code and the Code of Federal Regulations.

A new Reporter of Decisions, appointed in 2021, has, at last, begun to address the problem. For a review of what is still very much a work in progress, see A New Reporter Confronts the Supreme Court’s Unpublished Decisions (2024). (Available at SSRN: https://ssrn.com/abstract=4741050)

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Posted in Cases, Federal, Official | No Comments »

“(cleaned up)” Makes it to the Top

March 19th, 2021

Since 2017 an increasing number of lawyers and judges have used the parenthetical “(cleaned up)” to indicate that internal quotation marks, alterations, and citations have been omitted from a quotation. Recent editions of Introduction to Basic Legal Citation have recognized the practice. On February 25, 2021, it made its first appearance in a Supreme Court opinion, one written for the Court by Justice Thomas. None of the briefs filed in the case contained “cleaned up” quotations.

The (legal citation) landmark case is Brownback v. King. For more, see Debra Weiss, Justice Thomas goes rogue on the Bluebook with ‘cleaned up’ citation—to the delight of appellate lawyers, ABA Journal (March 15, 2021).

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“Copy with Reference”

November 10th, 2020
Westlaw

A 2014 review in this blog of the citations delivered by the major online research services along with copied blocks of text concluded:

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.

Six years on, the gap between promise and performance of the “copy with reference” feature of these systems has not diminished.

Incomplete Citations

Codified Material (Statutes, Regulations, Court Rules) — A Consistent Failure

To begin where that prior review ended, citations to highly structured documents like statutes, regulations, and court rules commonly require more than the section or rule number. The copied material may lie deep within a nested framework of numbered or lettered subsections and paragraphs. A full citation to a key passage must specify its exact location within that structure. For examples, consider 42 U.S.C. § 416(h)(1)(B)(i), Ky. Rev. Stat. § 355.4-406 (4)(b), 20 C.F.R. § 404.1520(d), and Fed. R. Civ. P. 19(b)(2). A researcher drawing crucial language of any of those provisions from a non-commercial online source will either copy the entire section or rule or, presumably, know that a copied sentence or two must be accompanied by a full designation reaching all the way down to the subsection, paragraph, or subparagraph level. Copy any of the cited passages alone, from Bloomberg Law, Fastcase, Lexis, or Westlaw and the citation or reference that accompanies it will contain only the section or rule number.

Journal Article References — A Problem on Lexis

In accordance with standard citation practice, a specific passage copied out of a journal article, with reference, from Westlaw will be designated:

Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 74 (2004)

The same passage copied from Lexis carries only the following elements:

ARTICLE:The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 74

If the researcher doesn’t want to return, at some later point, to complete her citation to the copied passage, whether in a memorandum, brief, or article, that information must be added to the citation produced by Lexis, manually, at the time the passage is copied.

A researcher on Fastcase and HeinOnline who downloads the pertinent page or the entire article in pdf will receive it covered by a page furnishing the article’s citation in seven different styles including “Bluebook 21st ed.” Since the downloaded file will include the full page on which the passage appears, all the information that will be required for a complete, properly formatted, citation is available.

Bloomberg Law has no law journal database and, therefore, does not pose the problem.

Non-Compliant “Standard” Format Citations

Both Lexis and Westlaw continue to treat citation as a form of branding. The (incomplete) “standard” format citation Lexis furnishes for the U.S. Code provision listed above is “42 U.S.C.S. § 416 (LexisNexis, Lexis Advance through Public Law 116-163, approved October 2, 2020)” while Westlaw delivers “42 U.S.C.A. § 416 (West).” In jurisdictions where these two companies compete in print, their respective citations to state statutes exhibit the same tendency. On Lexis, even the federal rules receive this treatment: “USCS Fed Rules Civ Proc R 19” instead of “Fed. R. Civ. P. 19.” Unlike the failure to furnish a complete designation for a copied passage, this proprietary flavor of a “standard” format can be rectified in a final piece of writing through use of a “search and replace” that converts all statutory, regulation, and rule citations to their official or generic form.

The same is true of non-compliant case name abbreviations. The “standard” format case references of both Lexis and Westlaw, as well as the citations delivered for cases by Bloomberg Law and Fastcase deviate in some particulars from the abbreviations set out in The Bluebook. (20th ed.). (To date, none have moved to the additional and altered abbreviations of the latest edition.) For example, Westlaw favors the abbreviation “Nat.” over The Bluebook‘s “Nat’l” for “National,” Lexis follows The Bluebook, Bloomberg Law reduces “National” to “Natl.” and Fastcase leaves the word in full. Both Lexis and Westlaw followed The Bluebook‘s 2015 switch from “Adver.” to “Advert.” as the abbreviation for “Advertising” and from “Cnty.” to “Cty.” for “County.” Bloomberg Law did not; Fastcase abbreviates neither word.

The good news is that all four systems appear quite consistent in their treatment of case names. As a consequence, to the extent that close Bluebook adherence is important to a writer who has relied consistently on any one of them, a “search and replace” operation can address discrepancies. For most purposes, that consistency itself is sufficient. The California Style Manual explicitly authorizes use of “a shortened title shown in a computer-based source” for cases.

Jurisdiction-Specific Citation Formats Generated by Lexis and Westlaw

Lexis and Westlaw invite the user to select among an array of formats for the citation attached to a copied passage. The format choices offered by Lexis include “Standard,” “ALWD,” and all fifty states. Westlaw’s list adds a “Westlaw” format option, but includes only 34 states plus the District of Columbia. (Omitted are smaller states in which Thomson Reuters does not sell a West-branded statutory compilation in print.)

Westlaw’s omission of states like Alabama, Alaska, Arkansas is particularly troubling since they (and numerou others) have quite distinctive local ways of citing their own codified statutes and regulations. See Basic Legal Citation § 3-300. Within Alaska, for example, a provision for which The Bluebook prescribes citation in the form “Alaska Stat. § 28.22.011 (<year>)” will be cited “AS § 28.22.011.” Choosing the “Alaska” format on Lexis gets that result, albeit with a brand and date element appended “(Lexis Advance through 2020 SLA, ch 32).” Overall, Lexis does a better job of furnishing state-specific versions of citations to statutory and regulatory codes.

In jurisdictions where there is an official report, Lexis gives the user a choice as to whether to attach it to a copied case reference, whether to include a citation the Thomson Reuters regional reporter, or whether to provide both. Citing an Illinois case to an Illinois court, one need not include any parallel citation. The medium neutral, public domain citation, by itself, is complete — “Yarbrough v. Nw. Mem’l Hosp., 2017 IL 121367, ¶¶ 21-22.” Lexis will produce Illinois citations in that format. In contrast, Westlaw gives the user no choice over whether a reference will include the company’s parallel regional reporter citations. Its Illinois version of the same reference (containing four unnecessary words) is: “Yarbrough v. Nw. Mem’l Hosp., 2017 IL 121367, ¶¶ 21-22, 104 N.E.3d 445, 448–49.”

In Conclusion

As of 2020, none of the “copy with reference” features of the major online legal research services can be relied on to provide complete, pinpoint citations of the principal categories of primary legal authority, in either fully compliant “standard” or jurisdiction-specific format. While they are, unquestionably, a convenience, they do not remove the need for a user to have full command of the requirements of legal citation.

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Posted in Abbreviations, ALWD, Bluebook, Cases, Journal articles, Regulations, Statutes | Comments Closed

Bluebook Weight Loss Program – Part Two: The Merger of Tables T6 and T13.2

October 16th, 2020

The twenty-first edition of The Bluebook has eliminated the separate table that previously prescribed how to abbreviate common words appearing in the name of a cited publication.  That table, Table T13.2, was a single purpose reference, to be used solely when citing articles.  Its columns, together with the institutional abbreviations contained in Table T13.1, turned “Harvard Law Review” into “Harv. L. Rev.”, “Yale Law Journal” into “Yale L.J.”, and “Journal of Law, Economics, & Organization” into “J.L. Econ. & Org.”  A writer consulted Table T6, not T13.2, when abbreviating a word in a case name or in the name of an institutional author.  In this latest edition, The Bluebook has collapsed the two.  The new, consolidated, T6 applies to case names, and to the names of publications, as well. 

Modest Gains

For the sponsoring organizations this constitutes the type of periodic revision valued by all publishers of higher education texts. It is the sort of change that will, inevitably, undercut the market for second-hand copies of The Bluebook‘s prior edition among the nation’s annual 38,000 or so beginning law students. For users the merger achieves only a slight reduction in the book’s heft—two pages, plus or minus. Any additional gains for a novice user of the reference, one of those beginning law students, say, are less clear.  For legal professionals committed to Bluebook compliance, as well as the research services and citation software tools upon which they rely, the change raises confounding issues.

Significant Costs

Unnecessary and Confusing Case Name Abbreviations

Providing separate tables for distinct types of material poses little risk of confusion, allows them to be tailored to the word patterns characteristic of each type, and relies on an abbreviation’s context to assist the reader.  (The Bluebook continues to employ many special purpose tables—one for court names, another for legislative documents, etc.) Set against uncertain gains, the merger of T13.2 and T6 has definite costs.  Collapsing the two deploys abbreviations that worked well so long as it was clear that they were part of a publication title into a setting in which they are far more likely to confuse.  The word “Law,” ubiquitous in journal names, illustrates the poor fit.  “Law” was never a candidate for a case name abbreviation.  Party names contain many more, much longer, “L” words.  In the new T6 “Law” has two entries and accompanying instructions on when to use each.  “Journal” at seven letters was not abbreviated in prior versions of T6, but as part of a periodical name the single letter “J” served as an intelligible stand-in.  Had “Journal” been included in the pre-merger T6 it would most likely have been trimmed to “Jour.”  (The only single letter abbreviations contained in that T6 were for the four cardinal directions.  Consistency with reporter abbreviations in Table T1 would have rendered “Atlantic” as “A.” but it is, and continues to be, shrunk only to “Atl.” when part of a case name,)  Consider a 2018 decision of the Nevada Supreme Court.  Per The Bluebook’s twentieth edition, the case should be cited as: “Clark Cty. Sch. Dist. v. Las Vegas Review-Journal, 429 P.3d 313 (Nev. 2018).”  Run through the new consolidated Table T6 its name becomes: “Clark Cty. Sch. Dist. v. Las Vegas Rev.-J.”

Only “University” has been spared merged treatment.  The T6 instructions conclude with a paragraph that applies solely to periodical titles.  It directs that although the abbreviation for “University” in T6 remains “Univ.” when that word is part of a journal name it can (and should) be reduced to “U.”

The Inclusion of Abbreviations for Words that Infrequently Appear in Case Names

Any number of the words moved from Table T13 into Table T6 have fewer than eight letters.  Many of those appear rarely, if ever, in case names.  Examples include: Africa, Ancestry, British, Civil, Cosmetic, Digest, Dispute, English, Faculty, Forum, Human, Injury, Labor, Lawyer, Library, Military, Mineral, Modern, Patent, Policy, Privacy, Record, Referee, Statistic, Studies, Survey, Tribune, Week, and Weekly.  Inserted into a table used to abbreviate case names, words like these constitute unnecessary clutter.  Their prior placement in Table T13 alongside the Institutional name abbreviations with which they often must be combined (abbreviations which remain in T13) provided the writer doing a lookup or format check on a journal citation, a simpler path. 

Displacement of Established and Intuitive Case Name Abbreviations

The merger also forced, otherwise unnecessary, changes in a number of case name abbreviations.  Separate tables allowed different abbreviations for the same word, with context determining which to use. The universe of journal names is many multiples smaller than that of party names.  In a citation they stand next to the full, unabbreviated title of the cited article and the author’s name.  This warrants a very different trade-off between the saving of space and clarity of reference.  That is why abbreviating “Law” as “L.” and “Journal” as “J.” and “Review” as “Rev.”—in the context of a journal name—works, while abbreviating a litigant named “Los Vegas Review-Journal” as “Los Vegas Rev.-J.” seems both unnecessary and cumbersome. That is why abbreviating “Employ,” “Employee,” and “Employment” as “Emp.” worked in a separate table for journal titles, but erasing the distinctions among “Employee” and “Employer” and “Employment,” as the merged T6 does, reduces clarity.  One can readily read and refer to “White v. Mass. Council of Constr. Emplrs, 460 U.S. 204 (1983)” (abbreviated according to prior editions of The Bluebook) by name, while “White v. Mass. Council of Constr. Emps., 460 U.S. 204 (1983)” (abbreviated per the twenty-first edition) leaves a reader unsure, without checking, whether it is the “Massachusetts Council of Construction Employers” or the “Massachusetts Council of Construction Employees.”  Previously, the abbreviation “Lab.” stood for “Laboratory” in a case name, “Labor” when it appeared in a journal title.  In context both were clear and not a source of confusion.  The table merger forced disambiguation.  “Laboratory” became a totally non-intuitive and unfamiliar “Lab’y”. Grotesquely, under the general rules on plurals that results in an abbreviation for “Laboratories” of “Lab’ys” (already, the subject of justifiable ridicule).

Will the Change Alter Professional Citation Practice?

To what degree will such changes in Bluebook abbreviations affect professional, as distinguished from academic, writing?  The answer is unclear.  It depends, in large part, on how the online research services and electronic legal citation formatting tools respond.  Case name abbreviations remain a matter of significant jurisdictional variation.  For certain, the U.S. Supreme Court will continue to cite its 1983 White decision by the name “White v. Massachusetts Council of Constr. Employers, Inc.”  Illinois appellate courts citing it will not even abbreviate “Construction.”

In part because of this degree of jurisdictional variation, the two dominant legal data vendors offer “choice of format” in their copy-with-citation features.  Among the choices both offer for cases is one labelled “standard.” 

Currently, both LEXIS and Westlaw provide a “standard” format case name for this 1985 decision of the U.S. Supreme Court at 471 U.S. 707 of:  “Hillsborough Cty. v. Automated Med. Labs., Inc.”  Will they, should they convert “Labs.” to “Lab’ys”?  Will they, should they retrospectively convert all the case names they deliver as part of a “standard” citation to the word abbreviations brought into T6 from T13.2 or altered there because of the merger?  When the twentieth edition of The Bluebook arbitrarily altered the abbreviation for “Advertising” from “Adver.”  to “Advert.” and the abbreviation for “County” from “Cnty.” to “Cty.“ in 2015, LEXIS and Westlaw followed. Bloomberg Law did not.  “Adver.” still regularly appears in appellate brief citations.

As yet, none of the online research systems have incorporated the numerous new abbreviations resulting from The Bluebook’s 2020 table merger.  Will they? May they not, instead, decide that the abbreviations resulting from this ill-considered move don’t warrant the label “standard,” since they fail to conform to widespread professional practice?  An option they might consider is the addition of a new “law journal” format to their array of options, thereby meeting the need of those law student editors and academic writers for whom Bluebook conformity is essential.  A similar puzzle over audience or market confronts those numerous other enterprises that provide legal citation formatting tools and citation guides.

Posted in Abbreviations, Bluebook, Cases, Journal articles | Comments Closed

The Bluebook’s 2020 Weight Loss Program – Remove All Foreign Citations

October 7th, 2020

The twenty-first edition of The Bluebook has shed a lot of weight.

20th edition | 21st edition

At 365 pages the citation reference has slimmed down over one-third to its dimensions of twenty-four years ago.  Up through the twentieth edition published in 2015 (560 page) successive editions exhibited unrestrained growth.  The trend was reversed this year, principally by transferring all of Table T2 (Foreign Jurisdictions) to the www.legalbluebook.com web site.  There, unlike the rest of the site’s content, it can be accessed without charge.  (Still in the print edition and therefore behind a paywall are Tables T10.2 and T10.3 upon which T2 draws.)  In a single move that trimmed 184 pages, pages that for most Bluebook users, legal practitioners especially, were simply added bulk and weight.

That is weight that the ALWD manual (now ALWD guide)—with its greater emphasis on the citation needs of U.S. legal professionals—has never tried to carry.  A single sentence in the first ALWD guide offered sound, if incomplete, advice: “If you need to cite a legal source from a foreign country, we suggest using the form of citation adopted by the country whose law is being cited.”  Missing from that formula is an instruction that a U.S. out-of-country citation should note the country of origin if that is not clear from the core cite or context.  Consider “R. v. Pires, 2005 S.C.C. 66, at para 8.”  For a Canadian lawyer or judge that is a complete pinpoint citation to a specific passage of a constitutional decision of the Canadian Supreme Court.  Placed in U.S. brief it needs more; however, a trailing “(Can.)” should suffice.

Why Not Let Go of the Table Altogether?

The decision to move The Bluebook’s Table T2 to the web was sound.  Wiser still would have been a decision to drop it altogether.  The ALWD Guide to Legal Citation now refers its users to the Guide to Foreign and International Legal Citations of the NYU Journal of International Law and Politics.  Keeping Table T2’s content up-to-date for forty-four countries is patently beyond the reach of student law journal editors.  In the current era, sluggish maintenance can result in an anachronistic print bias and subject the effort to the influence of commercial publishers.  Those flaws can be seen in Table T2’s treatment of Canada.  The entry for Canada can be read as advising that a U.S. citation to Pires be constructed as: “R. v. Pires, [2005] 3 S.C.R. 343 (Can.),” using volume and page number rather than the neutral citation scheme that the Canadian Supreme Court has employed for two decades.  Public domain, medium neutral, citation is mentioned in the Canada entry and said to be “preferred.”  In context, however, that appears simply to mean that the neutral citation should be placed in front of the print reporter citation, not that it should be used in its stead.

Commercial Influence or Bias?

Under the heading “Case citations to electronic systems,” the table describes Westlaw Canada and Quicklaw, as the country’s “main” ones—a puzzling elevation of those subscription services, to which many in the U.S. will not have access, over CanLII, the public site funded by the Federation of Law Societies of Canada.  From the CanLII database any U.S. lawyer, judge, or journal reader can retrieve a contemporary Canadian decision by its neutral citation without charge.  Moreover, in describing the CanLII approach to citation, the entry fails to distinguish between its treatment of cases that come with court-supplied neutral citations and the dwindling number that do not.

Inadequate Maintenance

The Bluebook’s preface asserts that “eleven jurisdictions in Table T2 have been comprehensively updated and one new jurisdiction has been added.”  The eleven countries are not identified (Portugal is conspicuous as the new entry.) and unless “comprehensively” is very generously construed Canada is not among the updated.  (The Cases portion of that country’s entry has seen minimal change since the nineteenth edition, published a decade ago.)  Other jurisdictions that have implemented systems of neutral citation in the modern era (e.g., South Africa) are similarly still thrust by T2 into a volume, reporter name, page number template.  Although not consistently, New Zealand is an exception.  That country’s entry directs: “If a medium-neutral citation has been assigned by the court it should be used to cite the case. If the case has also been reported, cite the medium-neutral citation followed by the citation to the report, separated by a comma. Do not give the court identifier at the end of the decision, as this is evident from the neutral citation.”  The question in this case is: Why include a parallel citation to a print report?  A Google search using its neutral cite will retrieve a decision of the New Zealand Supreme Court.  A parallel citation to its volume and page number in the New Zealand Law Reports has minimal utility to a U.S. lawyer, judge, or journal reader.

More serious failures to update dot the online Table T2.  The Republic of Zambia’s 2016 Constitution established a Constitutional Court.  That nation’s entry in The Bluebook table, unchanged since 2015, does not list it.  Also unchanged is the guidance for Kenya.  As a result, the citation system now employed in the official database holding the case law of that country and used by its courts—case name> [<year of decision>] eKLR—is not described.

Table T2’s Minimal Utility

Citations to foreign case law in U.S. journals, other than those focused on comparative law topics, are rare.  They are even less common in U.S. legal proceedings.  America’s neighbor to the north is its second biggest trading partner.  Yet over the past five years only a handful of U.S. appellate decisions have cited decisions of the Supreme Court of Canada. (A Lexis search uncovered five.)   A comparable citation count for all U.S.-based law journals falls well under one hundred.  A daunting challenge to maintain, of scant utility to U.S. legal professionals, The Bluebook’s Table T2 might best be retired.

Advice Instead of a Table

How should a U.S. lawyer or judge cite a foreign primary source?  The aim of such a citation is, of course, to facilitate retrieval by the intended reader.  In the case of many jurisdictions that can be accomplished by adopting the citation format of the source jurisdiction with the addition of a country identifier, as necessary.  For an increasing number of nations that will enable retrieval from a public or other non-commercial site using Google or a Google alternative.  In 2019 the Supreme Court of the United Kingdom was called upon to adjudicate the legality of the Prime Minister’s attempt to have the Queen prorogue Parliament.  An Internet search using the citation “R. v. The Prime Minister, [2019] UKSC 41” will take one directly to the official version of the court’s decision in that case.

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Posted in ALWD, Bluebook, Neutral citations | Comments Closed

The Bluebook’s Treatment of Court Rules

October 1st, 2020

From its first appearance in 2000, the ALWD manual (now “guide”) has furnished both a format for and examples of citations to state court rules.  Through successive editions, such little coverage as The Bluebook has given citation of court rules, however, has focused on the rules governing proceedings in federal courts.  Up through the twentieth edition, published five years ago, there was, at least, a nod toward the existence of state rules in the form of one example “Del. Ct. C.P.R. 8(f).”  Over time, that illustration became a curious, even an embarrassing, one, since for over a decade it bore no obvious connection to an existing Delaware court rule.  Nonetheless, “Del. Ct. C.P.R.” sat, undisturbed, between “1st Cir. R. 6(a)” and “Fed. R. Evid. 410” through multiple Bluebook editions since at least the fourteenth (1986).  (How much cite checking of examples goes into the updating of The Bluebook?)  The twenty-first edition, published this year, could have fixed the Delaware example.  (Citations to “Del. Super. Ct. C.P.R.” and “Del. Fam. Ct. C.P.R.” appear in contemporary decisions of that state’s courts.)  It could have replaced the Delaware example with one from a state like Texas where the court rules and their citation map closely onto the federal model (e.g., “Tex. R. Civ. P.”).  Instead, it provides no state example.  The only guidance offered in its pages, white or blue, is the advice, preceding the Rule 12.9.3 list of examples, to “[u]se abbreviations such as the following or abbreviations suggested by the rules themselves.”

The Bluebook’s Table 1, a catalog of “abbreviations and citation conventions” for the primary legal materials of all fifty states, fails to cure the omission.  State court rules are not among its categories.

If The Bluebook didn’t purport to provide “guidance for the everyday citation needs of … summer associates, law clerks, practicing lawyers, and other legal professionals” (to quote from its introduction) this lacuna might be excusable.  Little academic writing in the four law journals responsible for The Bluebook’s production concerns state law, let alone the rules of state courts.  Federal rules of judicial procedure and evidence do receive some discussion and therefore citation in their pages, but almost never a civil procedure rule of, say, Missouri or Texas.  As The Bluebook acknowledges in the preface to Table 1, “[t]he abbreviations and citation conventions … [it contains] are primarily intended to serve a national audience.” 

State style manuals (California, New York) do address the citation of their own state’s court rules.  For them it is an inescapable topic.  Citations to a state’s rules governing civil or criminal trial proceedings, evidence, and appeals are critical elements of in-state memorandum, brief, order, and opinion writing.  The Bluebook devotes five times the space to “Model Codes, Principles, Restatements, Standards, Sentencing Guidelines, and Uniform Acts” that it does “Rules of Evidence and Procedure.”  The ratio reasonably reflects the importance of the respective sources to elite law journals.  By contrast, in court opinions and briefs there are, perhaps, a hundred court rule citations to one of a restatement.

The difficult truth is that there is no nationally observed template for state court rule citations.  Rarely are they cited outside the jurisdiction to which they apply.  An Ohio court rule citation must be intelligible to an Ohio attorney or judge.  It need not be written with a Kentucky lawyer or judge in mind (and vice versa).  An Ohio judge will understand that a citation to “Crim.R. 32(C)” invokes Rule 32(C) of the Ohio Rules of Criminal Procedure.  “CR 23.01” directs a Kentucky judge or lawyer straight to Rule 23.01 of that state’s rules of civil procedure.  In both instances the jurisdiction is implied, not named.  More commonly state rule citations do include an abbreviation of the state name.  States adhering to this practice include California (e.g., “Cal. Rules of Court, rule 4.421(a)(1)”), Illinois (e.g., “Ill. Sup. Ct. R. 341”), New York (e.g., “22 NYCRR § 806.13”), and Texas (e.g., “TEX. R. CIV. P. 322”).  As those examples illustrate, even among jurisdictions where rule citations include explicit reference to the state, formats vary.  Some conform to the pattern employed for federal rule citations and adapted by the ALWD guide to state rules.  Some do not.

What advice should a citation reference provide about this important category of primary legal material, advice that will assist “summer associates, law clerks, practicing lawyers, and other legal professionals” with their “everyday citation needs?” 

  • First, when citing a rule governing federal court proceedings, a citation in the standard format exemplified by “Fed. R. Crim. P. 16” should be appropriate across the country.
  • Second, when citing a rule governing state court proceedings within that state the best guide to acceptable format will be recent decisions of that state’s highest court.
  • Third, the online research systems’ copy-with-citation functions are of no help on this point.  None of them picks up on local norms for citing court rules.

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How many words is a citation?

September 25th, 2020

The Federal Rules of Appellate Procedure and many state counterparts impose “word limits” on briefs and similar documents.  Rule 32(a)(7)(B) requires that a principal brief contain no more than 13,000 words, a reply brief, no more than 6,500.  Briefs that comply can exceed the respective page limits of 30 and 15.  Rule 28.1(e)(2)’s length limits for briefs filed in cross-appeals take the same form.  An alternative measure, available only to briefs prepared with a monospaced typeface, is lines of text.  While a brief’s table of citations is excluded from those word-count caps, all of the citations in its body, including those contained in footnotes, are tallied.  See Rule 32(a)(7)(B)(f).  The question explored here is: How are they counted?

The following citations are among those that appear in a brief randomly selected from U.S. Court of Appeals filings of this past June:

  • Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438 (4th Cir. 2014)
  • Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)
  • 10 U.S.C. § 1552(a)(5)
  • 32 C.F.R. § 70.8
  • Department of Defense Directive 1332.28

Each refers to a single source. But how many words does each of those references add to the brief’s total?  Is that sum affected by the citation format employed?  Understand that this is no mere theoretical question.  The attorney filing a brief must certify that it complies with the relevant word limit.  More precisely, that certificate must “state the number of words” contained in the brief.  Rule 32(g)(1).  So to repeat the question:  How many words do these five citations represent? 

Of course, few, if any, attorneys or their support staff grapple with that question in its raw form.  That is because the federal rule and its state equivalents allow the person preparing the certificate to “rely on the word … count of the word-processing system used to prepare the document.”  Rule 32(g)(1).  Set forth below are the figures Microsoft Word (2016)* provides for each. 

  • Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438 (4th Cir. 2014) (16 words)
  • Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (9 words)
  • 10 U.S.C. § 1552(a)(5) (4 words)
  • 32 C.F.R. § 70.8 (4 words)
  • Department of Defense Directive 1332.28 (5 words)

Some straightforward observations follow from those figures.  First, long case names expend words at a rate that bears no relation to their importance to a brief’s argument.  Second, the omission of a date element in the U.S. Code and Code of Federal Regulations citations—a widespread professional practice but one not sanctioned by The Bluebook prior to the 2020 edition—trims a word from each.  Third, the absence of a parallel citation for Spokeo (“194 L. Ed. 2d 635”) has reduced that citation’s word count by five.  Why five?  Because Microsoft Word woodenly treats every space as a word separator.  Third, the use of short-form citations can dramatically reduce a brief’s word count.  Substituting DoDD for “Department of Defense Directive,” as this brief does after the first occurrence of the full phrase, trims 3 words off what would otherwise be the added word count every time a directive is cited.  Finally, because of the treatment of spaces, citation format alone makes a difference. “S. Ct.” is counted as two words; “4th Cir.” is as well.  MS Word sees “L. Ed. 2d” as three words.  In a brief that makes repeated reference to a decision of the U.S. District Court for the Middle District of Florida, published in the Thomson West reporter, Federal Supplement, Third Series, the incremental word count created by the spaces in “F. Supp. 3d” and “M.D. Fla.” can begin to add up.  If that important case has a long case name, as well, e.g., Wendel v. Fla. Dep’t of Highway Safety & Motor Vehicles, 80 F. Supp. 3d 1297, 1302 (M.D. Fla. 2015) (MS Word count 19), each recurrence (not employing a short form) expends the equivalent of a sentence worth of words from a brief’s allotted quota.

Along come the editors of the freshly released twenty-first edition of The Bluebook.  In light of this troubling counting algorithm embedded in MS Word, they grant leave to practitioners, although not law review authors or editors, to squeeze all spaces out of reporter names.  Per The Bluebook (21st ed.) “F. Supp. 3d” can be written “F.Supp.3d” and “S. Ct.” as “S.Ct.”  Alas, “M.D. Fla.” falls outside its meagre gesture of relief, and short-form citations remain the only remedy for wordy case names.

California attorneys have a clear advantage in this area.  The California Rules of Court give them the option of citing in accordance with the California Style Manual.  Cal. Rules of Ct. 1.200.  That manual’s abbreviation format for both reporters and courts omits the spaces that The Bluebook requires.  It compresses “Cal. App. 4th” to “Cal.App.4th” and does the same with abbreviations of deciding courts.  The U.S. District Court for the Northern District of California is “N.D.Cal.”  See California Style Manual (2000).  (California appellate briefs are also allowed 14,000 words.  Cal. Rules of Ct. 8.204.)

Since the word count limits currently codified in appellate rules reflect a collective judgment on ample length for a citation-filled brief, any widespread shift in how attorneys format citations would be likely, in the end, to produce an adjustment of the cap.  At present, only a very small percentage of briefs filed in federal court squeeze the spaces out of reporter names.  The online legal research systems that allow one to retrieve a formatted citation along with text copied from an opinion insert the spaces called for by standard abbreviation practice, and format-checking software will look for them. It seems likely that this option offered by the editors of The Bluebook will be grasped only in an emergency.  It offers a way for the author of a brief confronting an imminent filing deadline with a word count slightly over the limit to trim without sacrificing content.  With more time, the text could be tightened.  If the length is a consequence of the complexity of the case, an order raising the cap is possible.  See Rule 32(a)(7)(B)(e).  It’s little surprise that this measure (the contemporary equivalent of reducing a paper’s margins) occurred to a bunch of student journal editors.

*Results on these and other word count matters vary with the word processing software employed.  See Don Cruse, Worried about word counts? Your choice of word processor matters a great deal (2013).  They also, apparently, depend on the software’s version.  See DeSilva v. DiLeonardi, 185 F.3d 815 (7th Cir. 1999).

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Posted in Bluebook, Cases, Federal, Regulations, Statutes | Comments Closed

The First Supreme Court Opinion Rendered in 2018 Is Now Out – How Many Years Before It Will Be Published in Final, Official Form?

January 11th, 2018

At the beginning of this week, on January 8, 2018, the U.S. Supreme Court released its first opinion of the new year. The decision in Tharpe v. Sellers, consists of a three-page per curiam, followed by a thirteen-page dissent written by Justice Thomas, joined by Justices Alito and Gorsuch. As posted at the Court’s web site readers are, perversely, invited to cite Tharpe as “583 U.S. ___ (2018)”.

In the form presented the citation is of little use. Only future decisions of the Court itself would dare to employ such an incomplete reference, at least without adding a parallel citation to facilitate precise retrieval. The Court’s practice is to leave that task to others. The Thomas dissent in Tharpe cites two 2017 decisions simply as: “Buck v. Davis, 580 U. S. ___ (2017) and Pena-Rodriguez v. Colorado, 580 U. S. ___ (2017)”. This approach forces his jump cite for a passage in the latter to read: “580 U. S., at ___ (slip op., at 17)”. Bloomberg Law, Lexis, and Westlaw have already augmented all such useless references with complete parallel cites to one or more unofficial reports.

The question revisited here is how long it will be before Tharpe‘s skeletal “official” citation is filled in, along with those for succeeding opinions that in time will make up volume 583 of the United States Reports. (The delay in Supreme Court decision publication and its effect on citation have been the subject of two prior posts, one in 2014, the other in 2016.)

By now both the legislative and executive branches of the federal government have embraced digital publication in ways that provide researchers with citable versions of the United States Code and the Code of Federal Regulations far more up-to-date than print ever allowed. They lag official action by days not years. Yet the judiciary, led by the Supreme Court, remains stuck in a print-dependent approach to publication and citation. The demand for print law reports has, of course, plummeted. At the same time federal budgets have grown tighter. The result? Growing delays.

Extrapolation from the most recent past yields a prediction that it will be years (four and a half to five) before Tharpe and succeeding decisions released during the next month and a half will be distributed in a “preliminary print” volume containing consecutive page numbers. That temporary, paperbound book will be labeled “Part 1 of volume 583” of the United States Reports. Unfortunately, no electronic copy of it will be released to the public. The preliminary print edition of Part 2 containing another month and a half of decisions will follow. Ultimately, those two parts will be combined into a single digital file representing the full volume. Up to a year later the bound volume of “583 U.S.” will be distributed to depository libraries and other institutions that have ordered copies. And finally, only after that, will the digital file of the volume’s final text and page numbers be placed at the Court’s web site.  Total elapsed time? Unless the Court’s procedures change, Tharpe v. Sellers won’t be published in final, official printed form until 2023. And the digital replica of that volume won’t be released until some later point in the same year. (The sequence alone prompts two simple questions: (1) Why delay the release of the electronic volume until after the print version has shipped? (2) Why withhold the electronic files of the prior preliminary print edition?)

The two earlier posts detail the costs imposed on others by these delays, as well as specific steps the Court could take to remove them from its publication process. As 2018 gets underway, the only observation to make is that the problem has not diminished, and the Supreme Court appears oblivious to it.

 

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