Archive for the ‘Software’ Category

From Blue to Indigo to …

Friday, May 20th, 2016

indigo

A New Citation Guide

A legal citation guide of a different hue, The Indigo Book, arrived on the scene this spring. Like the University Chicago Law Review’s Maroonbook, it was born of frustration over The Bluebook – but frustration of a very different kind.  The Maroonbook, first published in the late 1980s, still followed and revised by the University of Chicago Law Review, aimed to supplant The Bluebook’s complex and detailed dictates with “a simple, malleable framework for citation, which authors and editors can tailor to suit their purposes.”  In contrast, The Indigo Book, seeks to pry loose those very dictates, or at least the subset most important for participation in U.S. legal proceedings, from the intellectual property claims made by The Bluebook’s proprietors.

Working under the guidance of NYU copyright expert, Professor Christopher Sprigman, a team of students spent over a year meticulously separating the “system of citation” reflected in The Bluebook from that manual’s expressive content – its language, examples, and organization.  The Indigo Book is the result.  Like the ALWD Guide to Legal Citation, first published in 2000, it endeavors to instruct those who would write legal briefs or memoranda on how to cite U.S. legal materials in complete conformity with the system of citation codified in the most recent edition of The Bluebook while avoiding infringement of that work’s copyright.

Unlike the ALWD Guide, which competes with The Bluebook for a share of the lucrative legal education market at a similarly substantial price, this new entrant is free.  It can be viewed online or downloaded, without charge, in either of two formats – PDF or HTML.  As the work’s forward explains, providing “pro se litigants, prisoners, and others seeking justice but … lack[ing] resources … effective access to the system lawyers use to cite to the law” was, for its creators, an important goal.

Relatively few U.S. jurisdictions formally require that citations in court filings conform to the scheme set out in The Bluebook.  (I count one U.S. circuit court, a handful of U.S. district courts, and the appellate courts of eleven states.)  But Bluebook-compatible citations are consistent with the rules of most.  By removing price as a barrier and focusing on the legal materials most frequently cited in U.S. proceedings, this guide of a different color seeks to improve access to the nation’s judicial system.

Establishing a Space for Innovation

The Indigo Book is free in a second, more radical sense.  It has been released with a Creative Commons public domain dedication.  Anyone can copy and redistribute it.  Anyone can create new and different works based upon it.  No further permission from the creators or publisher is required.  The aim here is said to be the clearing of this zone, so important to our legal system, for further innovation.

From the very outset, The Indigo Book project has been both goaded and troubled by overbroad copyright threats and innuendo from The Bluebook’s proprietors and their attorneys.  (Carl Malamud, who has been central to the project and whose Public.Resource.Org is Indigo‘s publisher, tells the full lamentable story here.) By separating the widely used system of citation codified in The Bluebook from its particularized expression, The Indigo Book seeks to build a wall between such claims and the projects of future software and database developers and citation guide authors.

“Not Authorized by Nor in Any Way Affiliated with …”

Why indigo?  As discussed in an earlier post, the four law journals that publish The Bluebook hold registered trademarks in three variations of that name.  The Indigo Book was, for a time, going to be “Baby Blue.”  The law firm representing the Harvard Law Review Association demanded that the title be changed and that it not be replaced by one “consisting of or comprising the word ‘Blue’”While denying that “Baby Blue” posed any risk of trademark confusion or dilution, the creators of the new guide decided, nonetheless, to change its name rather than waste time and money on litigation.  Quite possibly they shared Isaac Asimov’s view:

It is customary to list indigo as a color lying between blue and violet, but it has never seemed to me that indigo is worth the dignity of being considered a separate color. To my eyes it seems merely deep blue.

What Are the Likely Prospects for the New Guide?

In legal education

The Bluebook is published by four law journals and commands the allegiance of nearly all law student-edited reviews in the country.  Due to the place of those reviews in law school culture, faculty members responsible for courses on legal writing are under powerful pressure to teach the “Bluebook” rules.  Over time that pressure induced the Association of Legal Writing Directors (ALWD) to bring that organization’s competing guide into complete conformity.  Like the new Indigo Book, the ALWD guide is better organized than The Bookbook itself and, on many points, clearer in explanation and illustration.  It, too, has saved space and maintenance burden by limiting itself to U.S. sources.  Even so, powerful network effects have limited its market share.  For The Bluebook is not merely manifest in the format of the citations it enables journal editors, legal academics, lawyers, and legal assistants to produce.  It also represents a matrix of rule numbers and tables that facilitates communication about and resolution of citation issues.  Biblical exegesis is characterized by reference to chapter and verse.  Law review debates over proper citation form refer to Bluebook rule numbers, tables, and text.  Even at the powerfully attractive price point of free, The Indigo Book will run up against the dependence of most citation discourse within America’s law schools, student-edited journals, and large firms on The Bluebook’s classificatory scheme and specific language.

As a Resource for “pro se litigants, prisoners, and others seeking justice”

In the form released the new guide is also unlikely to be of much aid to those navigating the legal system on their own.  By seeking to liberate the full system of citation explicated in 350 or so of The Bluebook’s pages, Indigo had, of necessity, to be far more detailed than any useful self-help guide should be.  Moreover, that detail incorporates numerous points on which The Bluebook reflects the undue influence of major publishers and many others in which is out of step with the evolving citation practice of lawyers and judges responding to the proliferation of electronic sources.

By placing their guide in the public domain, however, The Indigo Book’s creators have made it possible for groups preparing pro se handbooks, web site resources, and courthouse kiosks to draw upon it in preparing appropriately tailored citation guidance.  Other derivative work possibilities abound.  Bar groups or court systems may well be tempted to prepare citation manuals adapted to state-specific citation requirements and norms.  Citation software developers should be able to proceed without infringement fears. All of this is to be hoped for.

As the author of a free citation reference, now in its twenty-third year, I welcome The Indigo Book and all its future progeny.

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.