Archive for November, 2013

Parallel print citations in today’s digital environment

Tuesday, November 12th, 2013

Back in the day when case research entailed pulling volumes from a shelf and many states published their own “official” reports, parallel citations fulfilled a useful function. They allowed the reader of a brief, opinion, or journal article to retrieve a cited case by pulling whichever of alternative sets of reports were available.  Reporter name, volume number, and page led straight to the case. True, look-up-tables (West’s  National Reporter Blue Book, Shepard’s Citations) made it possible to determine where a case in volume 50, at page 278 of the official reports could be found in the National Reporter System regional reports and vice versa —  a tedious process but manageable.  But tables did not translate pinpoint citations.  And in most instances publication lag or policy stood in the way of reciprocal star pagination.  In states or during periods when no single reporter furnished full dual citation information, the value of parallel citation rose, but of course so did its cost. To produce complete parallel cites under those conditions a writer had to have access to two sets of books. The late West publishing company produced numerous state-specific offprints of its regional reporters to meet the market need and strong law school libraries maintained dual sets of reporters, at least until the 15th  edition of The Bluebook (1991). That edition broke with the past by authorizing the use of the National Reporter System cite alone in journal articles and seemingly in all other legal writing, except briefs and memoranda submitted to courts “of the deciding state.” Even that exception disappeared in the 17th edition (2000) which simply told practitioners to cite to “reporters preferred by local rules, including any parallel citations to the official state reporter, if required.”

The vendor- and medium-neutral citation schemes proposed during the 1990s by the American Association of Law Libraries and the American Bar Association were purposefully designed to specify cases and passages within them using a single set of identifiers that would work across publications and media, thereby rendering multiple citations unnecessary. However, as a transition measure, reasonable for a period when a fair portion of the legal profession still worked from print case reports (and to soften opposition to the reform), the ABA included the following language in its 1996 resolution:

Until electronic publications of case reports become generally available to and commonly relied upon by courts and lawyers in the jurisdiction [adopting neutral citation], the court should strongly encourage parallel citations, in addition to the [neutral] primary citation …, to commonly used printed case reports.

Most states adopting some form of print-independent citation during this period went beyond “strongly encourage” and required parallel citation to the National Reporter System. A few states also required citation to a continuing set of official print reports. Some neutral citation adopters like North Dakota, but not all (see below), realized that since paragraph numbers attached to decisions by the deciding court traveled with it into print requiring a parallel pinpoint page served no purpose (being both redundant and less precise).

Any need for such deference to National Reporter System volume and page number citation passed years ago. Citation norms or requirements that still call for its use in parallel with a publicly attached citation, whether print-derived or medium-neutral, impose significant costs on all providers of legal information (other than Thomson Reuters) and consequently on their users. Appropriately, the two states most recently adopting neutral citation systems, Colorado (2012) and Illinois (2011), have not insisted on or even affirmatively encouraged parallel citation. Colorado courts will accept either court-attached print-independent or National Reporter System case citations; briefs need not include both.  Illinois Supreme Court Rule 6 mandates use of that state’s new citation scheme; parallel print-derived citations “may be added but [are] not required.”

Present conditions compel those maintaining legal databases to index cases by alternative citation systems where they exist. Consider, as an example, the decision of the Kansas Supreme Court in Kansas Dept. of Revenue v. Powell filed on June 4, 2010. In time that case acquired volume and page numbers, first in the Pacific Reporter (232 P.3d 856) and later in the state-published Kansas Reports (290 Kan. 564).  Either cite will retrieve the decision on: Westlaw, Lexis, Bloomberg Law, Casemaker, Fastcase, Loislaw, or Google Scholar. The first four of those services (including Casemaker, the one available without additional charge to all members of the Kansas Bar Association) have also inserted dual sets of page break notations in that and all other Kansas case files. As a consequence their users can make or follow pinpoint citations employing either the official report or regional reporter’s system. They don’t need both.

Decisions from jurisdictions that have implemented neutral citation schemes employing paragraph numbers arrive embedded with complete citation information. They and their key passages can be retrieved from a full spectrum of legal research services and even the open Web without resort to parallel National Reporter System volume and page numbers. In releasing lawyers from the obligation to furnish parallel citations Colorado and Illinois have simplified case citation without inflicting inconvenience on users of any of the competing legal research services.

States that adopted neutral citation systems a decade or more ago but failed to make a complete break from print-derived citations (see below) should follow the lead of these two recent adopters. Any value parallel citation once had as a transition measure vanished along with printed law reports.

Parallel Citation Requirements in Neutral Citation Jurisdictions

State

Year neutral citation began

Parallel NRS print case citation to be provided, if available

Parallel pinpoint cite page numbers required, if available

Note

Arkansas

2009

Yes

Yes

Arkansas does not use paragraph numbers.

Colorado

2012

No

No

Use of the neutral citation is optional, but if one does use it a parallel print citation is not necessary.

Illinois

2011

No

No

Louisiana

1994

Yes

Yes

Louisiana does not use paragraph numbers.

Maine

1997

Yes

No

Mississippi

1997

No

No

Montana

1998

Yes (and to Montana Reports as well)

No

New Mexico

1997

NRS citation is optional, but parallel citation to New Mexico Reports is mandatory for cases published in it

No

Print publication of the New Mexico Reports ceased with volume 150.  All published decisions have been given neutral citations, retrospectively.

North Dakota

1997

Yes

No

Ohio

2002

Yes (and to Ohio Reports as well)

No

Oklahoma

1997

Yes

No

South Dakota

1996

Yes

No

Utah

1999

Yes

No

Vermont

2003

Yes (and to Vermont Reports as well)

No

Wisconsin

2000

Yes (and to Wisconsin Reports as well)

No

Wyoming

2001

No

No

 Source: Basic Legal Citation § 7-500.

Proposed OASIS Technical Committee

Friday, November 1st, 2013

Serious discussion is underway among members of OASIS Open around the need for a new Technical Committee that would be charged with developing a free, open markup standard for legal citations.  John Joergensen of Rutgers-Newark has summarized the proposal and its rationale. Robin Cover of OASIS has prepared a useful background document.

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.