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

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, Public.resource.org, 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 Public.resource.org 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?

January 7th, 2014

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

Cases

As noted in a prior post, the full date of release is a crucial part of the identifying data for any unpublished opinion.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

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

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

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

Statutes

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

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

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

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

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

Regulations

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

Commentary

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

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

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

Cite thoughtfully in 2014!

 

 

Citing unpublished decisions

December 5th, 2013

On December 16, 2010, a panel of the Eleventh Circuit, U.S. Court of Appeals, issued a per curiam opinion interpreting the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) as it related to specific Florida crimes. The panel designated that opinion not for publication (“DO NOT PUBLISH”). This December opinion vacated an earlier one, dated September 8, also unpublished, that had misstated one of the defendant’s prior convictions. The new decision corrected the error. In all other respects it was identical. Although unpublished, under the Federal Rules of Appellate Procedure (Rule 32.1) that December 16 decision can be cited. A rule of the Eleventh Circuit (p. 147, Rule 36.2) explicitly provides that unpublished opinions are not binding precedent but “may be cited as persuasive authority.”

The issue to be considered here is how to cite such unpublished, non-precedential decisions.

Both the September and December opinions are available on the Eleventh Circuit Web site. They and other Eleventh Circuit opinions applying the same sentence enhancement provision of the ACCA can be found with a Google web search (site:www.ca11.uscourts.gov “Armed Career Criminal Act” “residual clause”) or through a search on Google Scholar limited to the Eleventh Circuit. Anyone finding the court’s decision in United States v. Hayes on the open Web would, however, be unaware that, notwithstanding, the “DO NOT PUBLISH” label the editors of Thomson Reuters selected the decision for publication in a set of books that no law library I’ve ever used has seen fit to buy or shelve, the Federal Appendix of the National Reporter System. (The Federal Appendix is for sale. The full set, currently 523 volumes, covering a mere dozen years, can be yours for only $7,093.80, just marked down from $10,134, perhaps for the holidays. However, the print market was never that publication’s aim.) Within that series the Hayes decision is reportedly located in volume 409, at page 277. That information is not available on the open Web. Furthermore, unless a person finding and wanting to cite Hayes is a subscriber to Bloomberg Law, Lexis, or Westlaw, she would not be aware that those services have designated it, 2010 BL 299236, 2010 U.S. App. LEXIS 25741, and 2010 WL 5122587, respectively. Those high end services also provide the case’s Federal Appendix cite, 409 Fed. Appx. 277 (or as converted by The Bluebook, 409 F. App’x 277). Persons with access to Casemaker or Fastcase could discover and retrieve the Hayes decision using a suitable query, but neither of those services adds their own proprietary citation or reports the citations added by their competitors.

One further point about the Federal Rules of Appellate Procedure and Eleventh Circuit additions – they provide no explicit guidance on how to cite “unpublished” but widely available decisions like Hayes. One can, however, find indirect policy guidance in the same Eleventh Circuit rule that allows their citation. It provides that “If the text of an unpublished opinion is not available on the internet, a copy of the unpublished opinion must be attached to or incorporated within the brief, petition, motion or response in which such citation is made.” Patently, this requirement is not focused on judicial access to such decisions. The judges of the Eleventh Circuit, like other federal judges, have access to both Lexis and Westlaw.  Rather the rule addresses the problem of access faced by parties without access to Westlaw, Lexis, Bloomberg Law and the rest, and citation format bears directly on access.  A citation to Hayes in a brief, memo, or court opinion reading: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010)“ is utterly useless on the open Web. It will also fail to retrieve the decision on Casemaker and Fastcase. Yet that is precisely how The Bluebook would have the case cited once it has been selected for and received volume and page numbers in the Federal Appendix. (See Rule 10.5(a).) No doubt that is because The Bluebook is written by and for law journals, whose editors have access to at least one, if not all, of the Bloomberg Law, Lexis, and Westlaw trio. The ALWD Citation Manual similarly assumes the universal utility of a Federal Appendix citation. (See its Rule 12.14(b).)  In fact the ALWD manual goes farther down this false path than The Bluebook, for it authorizes citations to unpublished decisions that rely totally on Lexis or Westlaw cites, which are even less effective across systems, e.g., “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010)” or “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010).”

Until the federal courts begin attaching neutral citations to their own decisions, the only effective way to cite Hayes or any other “unpublished” but widely distributed decision is to include both the docket number and the full date of the decision, as in “United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010).” The docket number, coupled with deciding court, enables retrieval of the opinion from all competing commercial research services, from Google Scholar and the open Web. The full date, particularly important with this example, allows anyone following the citation to realize that the vacated September 8 opinion, which the docket number will also retrieve, is not the target of the reference.

In sum, both The Bluebook and the ALWD Citation Manual have been led astray. An unpublished decision should be cited as an unpublished decision. Docket number, court, and full date work effectively to identify and retrieve a cited case across sources, including importantly the open Web. A citation to the Thomson Reuters Federal Appendix is no substitute. Nor is a citation using the proprietary numbering system of one of the commercial online services. Of course, there is no harm, beyond the space consumed, in adding a Federal Appendix, Bloomberg Law, Lexis, or Westlaw cite to that essential core. On the other hand, unless one is confident that all important readers of a document will have access to a system on which such a proprietary cite will work, the added value is not likely to be worth the increase in citation length.

Unfortunately, the judges of the Eleventh Circuit and the district courts over which it sits do not model this approach. Just as they impose no particular citation format on those appearing before them, they practice none. Hayes has been cited in numerous subsequent decisions, both published and unpublished. In United States v. Nix, 628 F. 3d 1341, 1342 (11th Cir. 2010) the earlier Hayes opinion is cited as “United States v. Hayes, 2010 WL 3489973 (September 8, 2010).” The dissent in Rozier v. United States, 701 F.3d 681, 688 n.5  (11th Cir. 2012)  cites to the Federal Appendix reporter, “United States v. Hayes, 409 Fed.Appx. 277 (11th Cir. Dec.16.2010).” United States v. Morris, No. 11-13064 (11th Cir. Aug. 15, 2012) (which appears in volume 486 of the Federal Appendix at page 853, if that is useful to you) cites the case, without either docket number or exact date, as “United States v. Hayes, 409 Fed. App’x 277, 278-79 (11th Cir. 2010).” Citations to Hayes, in recent decisions of the U.S. District Court for the Middle District of Florida, appear in the form: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010), cert. denied, ___ U.S. ___, 132 S. Ct. 125, 181 L. Ed. 2d 47 (2011).”

Under the influence of those appearing before them and the guidance of their clerks, federal judges need to bring their citation practice into accord with the concern over access expressed in the Eleventh Circuit rule.

Origins of the Bluebook?

December 4th, 2013

The Bluebook, currently produced as a (quite profitable) joint venture by the law journals of Columbia, Harvard, Penn, and Yale, has long been thought by Harvard people to have begun there in 1926. Now comes Fred Shapiro of Yale with evidence that the first Harvard Bluebook was cribbed without attribution from a 1921 Yale Law Journal pamphlet.

Parallel print citations in today’s digital environment

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

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

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.

Ideas on how to improve The Bluebook? Online survey

October 21st, 2013

In preparation for the commencement of work on the 20th edition of The Bluebook, due out in 2015, that manual’s proprietors have placed a survey online at: https://www.legalbluebook.com/survey.  Anyone with views on how that reference might be improved in scope, delivery, or content should register them … soon. Submissions must be received by Nov. 8.

Statutes – Citation norms that reinforce copyright claims

October 21st, 2013

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

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

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

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