Archive for January, 2014

Costs of the (Increasingly) Lengthy Path to U.S. Report Pagination

Monday, January 27th, 2014

On May 17, 2010, the U.S. Supreme Court decided United States v. Comstock, holding that Congress had power under the Necessary and Proper Clause of the U.S. Constitution to authorize civil commitment of a mentally ill, sexually dangerous federal prisoner beyond his release date. (18 U.S.C. § 4248).  Three and a half years later, the Court communicated the Comstock decision’s citation pagination with the shipment of the “preliminary print” of Part 1 of volume 560 of the United States Reports. That paperbound publication was logged into the Cornell Law Library on January 3 of this year.  (According to the Court’s web site the final bound volume shouldn’t be expected for another year.) United States v. Comstock, appears in that volume at page 126, allowing the full case finally to be cited: United States v. Comstock, 560 U.S. 126 (2010) and specific portions of the majority, concurring and dissenting opinions to be cited by means of official page numbers.

U.S. Reports

This lag between opinion release and attachment of official volume and page numbers along the slow march to a final bound volume has grown in recent years, most likely as a result of tighter budgets at the Court and the Government Printing Office.  Less than two years separated the end of the Court’s term in 2001 and our library’s receipt of the bound volume containing its last decisions. By 2006, five years later, the gap had widened to a full three years. Volume 554 containing the last decisions from the term ending in 2008 didn’t arrive until July 9 of last year. That amounts to nearly five years of delay.

If the printed volumes of the Court’s decisions served solely an archival function, this increasingly tardy path to print would warrant little concern or comment. But because the Court provides no means other than volume and page numbers to cite its decisions and their constituent parts, the increasing delays cast a widening ripple of costs on the federal judiciary, the services that distribute case law, and the many who need to cite it.

The nature of those costs can be illustrated using the Comstock case itself.

The Need for Some Alternative Citation System to Use over the Lengthy Interim

As released the Court’s slip opinions do not provide the information necessary to meet current citation norms. For the period they carry Supreme Court decisions lacking official volume and page numbers legal database providers must, therefore, decide whether to employ a proprietary citation scheme of their own and further which of the dominant, competing unofficial volume and page number systems (S. Ct., L. Ed. 2d) to insert as slip opinion identifying numbers and divisions. Since neither of the latter are instantly available, their use requires later editorial intervention. None of these alternatives is without costs.

Incomplete and Temporary References in the Original Opinion Texts, Requiring Later Revision

In the original 2010 Comstock text (at page 20 of the slip opinion) Justice Breyer, writing for the majority, refers to a dissent by Justice Thomas, as follows:

Indeed even the dissent acknowledges that Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power, and also the additional power to imprison people who violate those (inferentially authorized) laws, and the additional power to provide for the safe and reasonable management of those prisons, and the additional power to regulate the prisoners’ behavior even after their release. See post, at 12-13, 17, n. 11.

The Thomas dissent cites a 2008 decision of the Court but had to do so in the following form because it had not yet, in 2010, appeared with official report pagination:

To be sure, protecting society from violent sexual offenders is certainly an important end. Sexual abuse is a despicable act with untold consequences for the victim personally and society generally. See, e.g., Kennedy v. Louisiana, 554 U. S. ___, ___, n.2, (2008) (ALITO, J., dissenting) (slip op., at 9, n. 2, 22–23).

In the preliminary print volume Justice Breyer’s cross-reference reads: “See post, at 169, 170, 173-174, n. 12.” Note not only that it now lists three rather than two sets of pages but also that “n. 11” has become “n. 12”.  Comparing the slip opinion and preliminary print, it seems evident the Court’s reporter of decisions was helped to see how, more precisely, the slip opinion page references mapped to the later version’s pagination and that the original footnote cross reference was off by one. (Although such changes have been known to occur, Justice Thomas did not add a footnote in the interim.) The citation in Justice Thomas’s dissent has been filled in and the parenthetical slip opinion references removed: “See, e.g., Kennedy v. Louisiana, 554 U. S. 407, 455, n.2, 468-469 (2008) (ALITO, J., dissenting).”

In short, because the Comstock decision, itself, and the Kennedy decision cited by Justice Thomas lacked permanent citation data in 2010, its text carried temporary and incomplete references that later had to be interpreted and filled in by the Court’s Reporter of Decisions (Frank D. Wagner through 2010, since 2011, Christine Luchok Fallon). That, however, is only the beginning of a cascade of revisions that must follow.

Database Services Must Detect, Extract, and Insert the Later Changes

All redistributors of the Court’s decisions must merge these and any other changes in the Comstock opinions into online versions that have been in place since spring 2010 – a costly process and one that injects risk of error. Strangely, the Court’s web site seems oblivious to the problem for it does not offer preliminary print versions of the United States Reports in electronic format. Consequently, legal database providers that care about conforming Supreme Court decisions to the official reports at this point must work from print. Their only alternative is to wait another year or so for release of the final bound edition which the Court does offer in digital format. (The most recent bound volume, received by the Cornell Law Library five years after the date of its contents, is the one holding the2008 Kennedy case cited by Justice Thomas. It is available for download at the Court web site.)

As of today, less than a month after the availability of Comstock in preliminary print form, what have the major online services done with its updated content?

Westlaw’s editors have inserted the official report page breaks in that service’s version of Comstock, but have failed to conform Justice Breyer’s cross reference. In Westlaw, as in the “Interim Edition” of the Supreme Court Reporter, his reference tracks the original, with the pagination converted to that in the company’s print reporter. It still points to “n. 11”. Justice Thomas’s citation to Kennedy v. Louisiana, has the jump cite pages in the official report blank, augmented by complete parallel references to the Supreme Court Reporter.

Lexis has caught the change in the footnote referenced by Breyer and substituted the official report pagination for that used in the slip opinion, placing the cross-reference pagination of its Lawyers’ Edition reporter in parallel.  It has also filled in the blanks in Thomas’s citation of Kennedy, placing Lawyers’ Edition pages in parallel but it has missed the additional page range appearing in his citation that was not signaled in the original by a blank (“468-469”).

Bloomberg Law has inserted the official report page breaks but the cross reference remains exactly as it was in the slip opinion, complete with the now useless slip opinion pagination. The Thomas citation also stands exactly as it was, providing no page numbers in 554 U.S.

Loislaw has added the new official cite to the Comstock slip opinion, enabling retrieval by cite alone but has not added page breaks or conformed the text in other ways.

Casemaker has not added the official cite so the case must be retrieved by name or by use of the Supreme Court Reporter cite. The case carries Supreme Court Reporter page breaks and is in other respects conformed to the Thomson Reuters edition.

Fastcase holds the case in slip opinion form, with slip opinion pagination, but it can be retrieved using the Supreme Court Reporter cite.

Google Scholar like Casemaker conforms to the Supreme Court Reporter and does not yet reflect the availability of the official version or its cite.

The Multiplier Effect: Other Cases

This is only the beginning of the cascade, for during the three and a half years separating Comstock’s release and its acquiring an official cite the decision was cited (necessarily in some incomplete or unofficial fashion) by hundreds of lower courts. Shepards (Lexis) shows 191 entries on Comstock’s subsequent appellate history, 231 other citing decisions, and 441 citing references in law reviews and treatises. Legal database providers must decide which of these references to edit to include the Supreme Court’s decision’s official citation and how, if at all, to translate any pinpoint references into official pagination.

A Citation System that Avoids These Costs

How much simpler it would be for those of us who work with case law and less costly for the services on which we rely if the U.S. Supreme Court were to release its decisions in final and citable form rather than allowing a three to four year lag between release and the near final preliminary print.

Illinois appellate decisions (as well as those of several other states) demonstrate the comparative advantages of such an approach.

Less than a year ago, on March 21, 2013, the Illinois Supreme Court released People v. Cruz, 2013 IL 113399. One of several intermediate appellate court decisions to cite Cruz decided in the months immediately following was handed down only eight days later, People v. Cage, 2013 IL App (2d) 111264. Because Illinois decisions have, since 2011, been released with full official citation information the Cage references could be both complete and final:

¶ 15 We find support for our determination in our supreme court’s recent decision in People v. Cruz, 2013 IL 113399, 985 N.E.2d 1014, 369 Ill. Dec. 28. In Cruz, the defendant filed a petition seeking relief under the Act. The case proceeded to the second stage, and the State moved to dismiss, arguing, inter alia, untimeliness; the trial court granted the State’s dismissal motion. Id. ¶¶ 8, 15. The defendant appealed, and the State argued for the first time that the trial court’s dismissal should be affirmed because the defendant failed to attach a notarized affidavit to his pro se supplemental petition alleging a lack of culpable negligence. Id. ¶ 16. The appellate court agreed with the State, concluding that, “‘because [the defendant] filed no notarized affidavit to support the allegations of cause for the delayed filing, the trial court properly dismissed the postconviction petition.’ [Citation.]” Id.

Under the Illinois citation scheme, cross-references between opinions in a case can also be complete and in final form without a need to wait months or years to see what volume or page numbers have been assigned to the passages in question. Footnotes 1 and 2 in the majority opinion of Chicago Teachers Union v. Board of Education, 2012 IL 112566, illustrate:

1. The dissent appears to assign pretextual motives to the Board’s economic layoff of tenured teachers. Infra ¶ 41 (Theis, J., dissenting, joined by Kilbride, C.J.). However, it is undisputed that the layoffs in this case were based on nonpretextual economic reasons.

2. The dissent acknowledges this statutory distinction (infra ¶ 45 (Theis, J. dissenting, joined by Kilbride, C.J.)), yet fails to recognize its legal significance in construing these statutes.

Legal information providers can load Illinois decisions “as is”. When they later receive volume and page numbering in unofficial reports (notably N.E.2d of the Thomson Reuters National Reporter System) they can, but need not, merge the resulting case cites and page breaks into the official versions.


At a time when few researchers rely on print reports, the Supreme Court’s continued dependence on a set of print volumes, produced long after the fact, for a case’s official cite (and final text) is a costly anachronism. The growing lag in production of those volumes cannot be excused by the existence of many electronic sources. Indeed, their number and importance in legal research increase the ultimate burden of the delay.

Finally, there is an indeterminate hidden cost. So long as years separate initial slip opinions from their final official versions, justices face a troubling temptation to continue fiddling with their texts. One trusts that a desire to have a lengthy period for revision is not the cause of the recent increase in delay, but that delay does inevitably invite authorial “improvement”.


Citation as DNA

Wednesday, January 22nd, 2014

In a guest post this week on Justia’s Verdict blog, I explain how one can use citation format to determine a legal information service’s data source for case law and report on the results of such an investigation.

OASIS Legal Citation Markup Technical Committee

Wednesday, January 15th, 2014

The proposed OASIS Legal Citation Markup (LegalCiteM) Technical Committee reported in an earlier post has now been chartered and has issued a call for participation. The committee’s first meeting will be held on Feb. 12, via teleconference.

Case citation and the proposed “Edicts of Government” amendment to the Copyright Act

Wednesday, January 15th, 2014

Yesterday, Carl Malamud testified before Congress on behalf of an amendment to the U.S. Copyright Act that would codify the following exception to its coverage:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

The language is drawn directly from a 1984 publication of the U.S. Copyright Office, which has been under revision for over two years. As Malamud explained, the legal position it expresses traces back to two nineteenth century Supreme Court decisions, Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888), is grounded in Constitutional values, and despite the absence of explicit expression in the current Copyright Act has continued to be affirmed by twenty-first century rulings. See Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002).

The case he presented to Congress cited the experience his non-profit,, has had with states’ claiming copyright in their codified statutes (the subject of a prior post). The principal target of his testimony and the proposed amendment, however, are copyright claims asserted by standards development bodies in the safety and other codes that are, as intended, adopted as law by state and federal governments. Testifying in opposition to the proposed amendment was the vice president and general counsel of the American National Standards Institute.

Malamud’s testimony made no mention of his organization’s past work with case law and the cloud of copyright uncertainty overhanging law reports. Nor would his proposed amendment resolve a copyright issue that has been a major source of that uncertainty for nearly three decades.

The issue first arose in 1985 when Lexis announced its intention to add volume and page numbers drawn from the National Reporter System of the then West Publishing Company to its database of federal and state judicial opinions, not merely the page numbers on which decisions began but the page-breaks within them necessary for pinpoint citation (“star pagination”). West sought and was granted a preliminary injunction on the ground that while the decisions issued by courts were in the public domain the selection and arrangement of them in West’s books as expressed in volume and page numbers qualified for a compilation copyright. West Pub. Co. v. Mead Data Cent., Inc., 616 F. Supp. 1571 (D. Minn. 1985), aff’d 799 F.2d 1219 (8th Cir. 1986). Three years later, the litigation was settled in an agreement that allowed Lexis to incorporate West page numbers in its online system upon payment of “substantial” license fees (reported to be $3 million a year). A Lexis spokesperson noted that although there was no definitive court ruling on the merits “contractually we are recognizing their copyright.” Since the license to Lexis was limited to the online service it constrained the company’s later initiatives in CD-ROM distribution.

While a 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) cast substantial doubt on the West copyright claim, the company continued to use it to beat back the flock of new entrants drawn to case reporting during the early 1990s by the low cost of CD-ROM publication. See Oasis Pub. Co. v. West Pub. Co., 924 F. Supp. 918 (D. Minn. 1996) (settled while on appeal, also with a West license affirming its copyright claim).

In 1992 the Thomson Company, not yet owner of West or merged with Reuters, supported a bill introduced in Congress by Barney Frank (H.R. 4426, 102d Cong. (1992)) that would have specifically excluded copyright coverage of the names, numbers, and citations of state and federal statutes, regulations, and law reports. Fiercely opposed by West, the proposal failed to get beyond committee hearings.

Later, during negotiations over the terms of the consent decree that cleared the way for Thomson’s acquisition of West, West’s agreement to grant star pagination licenses to others than Lexis was trumpeted by the U.S. Justice Department as a key concession.  Under pressure from District Judge Paul Friedman, West’s agreed-to licensing terms were repeatedly liberalized.  The judge explained:

Charging money to small publishers for obtaining a license to use a pagination system to which any copyright claim seems questionable would impermissibly shift the costs of litigating the legal uncertainty of West’s copyright claim.

The final decree deferred all license fees for small publishers “until a decision on the merits by the United States Supreme Court … with respect to West’s copyright claims or December 31, 2000, whichever comes first.”

December 31, 2000 came first and as of January 2014 the Supreme Court has not ruled. Thomson Reuters, now West’s owner, has yet to relinquish the claim that volume and page numbers drawn from its reports (the only accepted means of citing a passage within the opinions of a majority of U.S. jurisdictions) and inserted by others in public domain texts infringe its copyright. Malamud knows this well for in 2007 he wrote Thomson Reuters asking for clarification of the scope of its copyright claim in the National Reporter System. The reply by its deputy general counsel reasserted the company’s claim to a copyright in the “selection and arrangement, within each reporter, of the individual case reports.” His letter noted that the 1998 Second Circuit case, Matthew Bender & Co. v. West Pub. Co., 158 F. 3d 693 (2d Cir. 1998), holding that the insertion of the West star pagination was not an infringement of copyright, was decided 2-1 over a strong dissent and that the Eight Circuit had consistently held to the contrary. The Court of Appeals case law collection offered by ends in 2007 and contains no West page-break data. See, e.g., Moore v. Quarterman, 491 F.3d 213 (5th Cir. 2007).

Regrettably Malamud’s proposed “Edicts of Government” Copyright Act amendment would not, standing alone, lay this claim to rest. That is because West, now Thomson, has consistently conceded that the decisions issued by a court, like the laws passed by a legislature, are in the public domain. Its proprietary claims have been limited to value its editors have added. Should Congress ever get around to amending the Copyright Act in this area, additional language like that contained in the 1992 bill is called for, language explicitly denying copyright coverage to:

  • … any name, number, or citation by which the text of State and Federal laws or regulations are, or ever have been, identified; [and]
  • … any volume or page number by which State or Federal laws, regulations, judicial opinions, or portions thereof, are, or ever have been, identified

The designations by which laws and judicial opinions are cited are so integrally connected with the texts they identify their copyright status ought to be addressed at the same time. All the reasons why copyright law should not be available for use by public bodies or commercial entities to restrict access to or republication of “edicts of government” apply equally to the data that identify them, whether volume and page numbers, title and section numbers, or more contemporary, medium-neutral citation schemes.


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.


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.


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.


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.


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!