{"id":53,"date":"2013-11-01T17:24:49","date_gmt":"2013-11-01T17:24:49","guid":{"rendered":"http:\/\/citeblog.access-to-law.com\/?p=53"},"modified":"2021-12-11T18:14:03","modified_gmt":"2021-12-11T18:14:03","slug":"nowhere-versus-generic-citations","status":"publish","type":"post","link":"https:\/\/citeblog.access-to-law.com\/?p=53","title":{"rendered":"Nowhere versus generic citations"},"content":{"rendered":"

A recent New York Times<\/i> piece on the prevalence of non-functioning links in Supreme Court citations (a topic for another day) carried the headline: \u201cIn Supreme Court Opinions, Web Links to Nowhere<\/a>.\u201d 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\u2019s dominant system of proprietary, print-based citation of U.S. case law with vendor- and medium-neutral citations. At the time West\u2019s representatives repeatedly characterized citation identifiers applied by the issuing court as \u201ccitations to nowhere\u201d or \u201cnowhere citations.\u201d<\/a> They asserted that the approach, then and still, advocated by the American Association of Law Libraries and American Bar Association<\/a> “provides absolutely no clue that helps the researcher to identify the publication, CD-ROM, or online service where she can actually find the opinion.\u201d<\/p>\n

Artfully, the argument conflated two quite distinct goals for a citation system \u2013 one central, the other secondary and often sacrificed to competing values. As explained in \u00a7 1-200<\/a> of Basic Legal Citation<\/i>: a functional legal citation must, within limited space, \u201cprovide the reader with sufficient information to find the document or document part in the sources the reader<\/i> has available (which may or may not be the same sources as those used by the writer).\u201d A second and separate principle would call for disclosure of the writer\u2019s actual source. In a much cited 1982 article on citation theory and practice<\/a>, Paul Axel-Lute placed the latter citation principle dead last in his list of thirteen, a set which he noted carried inevitable conflicts.<\/p>\n

As the Axel-Lute article observed this \u201cwriter disclose your source\u201d principle is, in numerous settings, trumped by the principle of \u201cbrevity\u201d and also overridden by rules calling for citation to \u201cofficial\u201d sources (whether or not in fact used by the writer). Noting that longstanding practice, codified in The Bluebook<\/i>, which had just then appeared in its thirteenth edition, <\/i>did not require specification of source in citations of court rules, Axel-Lute surmised this was because they \u201care found in a multiplicity of sources.\u201d He observed that the same held for citations to the Constitution.<\/p>\n

In the early 1980s case law was not available from a \u201cmultiplicity of sources\u201d and a case citation in the format \u201c___ F.2d ___, ___\u201d at once directed readers to the cited passage and indicated the writer\u2019s use of a specific source. Four decades later \u201cmultiplicity of sources\u201d 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<\/b> available from \u201ca multiplicity of sources,\u201d some free to all, others free to all members of a state bar<\/a>, 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.<\/p>\n

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\u2019s statute on grandparent visitation rights, J.C. v. J.B.<\/i><\/a>, 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 \u201c991 N.E.2d 110\u201d, which conforms to the pattern specified by the major citation manuals and Indiana\u2019s own rules of appellate procedure, drive the reader to a particular source. Ultimately<\/b>, 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, \u201c991 N.E.2d 110\u201d 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<\/i> volume and page numbers were not attached to it on Westlaw until roughly a month later. \u00a0At 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.\u00a0 Until that is done \u201c991 N.E.2d 110\u201d 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. \u00a0Casemaker did not make that match until mid-October.\u00a0 And as of this writing \u201c991 N.E.2d 110\u201d still draws a blank on Google Scholar (even though it holds the case). \u00a0Google Scholar has integrated volume and page numbers with opinions Thomson Reuters has allotted to \u201c898 N.E.2d\u201d but as yet none from \u201c890 N.E.2d\u201d or \u201c891 N.E.2d.\u201d<\/p>\n

Consider also the statutory provision at issue in J.C. v. J.B. <\/i>It \u00a0is cited by the court as \u201cInd. Code \u00a7 31-17-5-1.\u201d On Lexis that section is presented as \u201cBurns Ind. Code Ann. \u00a7 31-17-5-1.\u201d Westlaw identifies the same provision as part of \u201cWest’s Annotated Indiana Code.\u201d Both titles match those of copyrighted print compilations marketed by the respective companies. Were one to take the \u201cwriter disclose your source\u201d principle seriously even a citation to \u201cBurns Ind. Code Ann.\u201d would have to indicate whether it referred to the publisher\u2019s print or electronic version. Somewhat ambiguously The Bluebook<\/i> instructs a writer to cite to \u201cIndiana Code \u2026 if therein\u201d rather than to either commercial version, but does it mean a specific \u201cIndiana Code\u201d? Although the Indiana Legislative Services Agency maintains an up-to-date compilation of the state\u2019s statutes with that title at: http:\/\/www.in.gov\/legislative\/ic\/2010\/<\/a>, it is good bet that the Indiana lawyer who complies with the state\u2019s rules of appellate procedure and cites to Ind. Code \u00a7 31-17-5-1 has secured its text from Lexis, Westlaw, or Casemaker rather than from that public site<\/a>.<\/p>\n

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 \u201cInd. Code\u201d 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.\u00a0 The major citation manuals and some state rules are not clear on this point, largely because they remain stuck in patterns shaped by print.<\/p>\n

There are still some situations where the \u201cwriter disclose your source\u201d principle merges with the core task of facilitating the reader\u2019s retrieval of the cited text, where indicating source avoids the risk of a \u201cnowhere citation\u201d or misdirection.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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: \u201cIn Supreme Court Opinions, Web Links to Nowhere.\u201d The phrase brought to mind the fierce attack mounted by the late West Publishing Company during the mid-nineties against proposals to replace that […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[8,12,11,10],"tags":[34,13,15,14,4],"class_list":["post-53","post","type-post","status-publish","format-standard","hentry","category-bluebook","category-cases","category-neutral-citations","category-statutes-2","tag-bluebook","tag-cases-2","tag-citation-principles","tag-neutral-citations-2","tag-statutes"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/53","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=53"}],"version-history":[{"count":4,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/53\/revisions"}],"predecessor-version":[{"id":75,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=\/wp\/v2\/posts\/53\/revisions\/75"}],"wp:attachment":[{"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=53"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=53"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/citeblog.access-to-law.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=53"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}