ARCHIVED: ABA Citation Resolution

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[Review Cover Letter]

TO: The Committee on Automation and Technology of the Judicial Conference of the United States

FROM: The American Association of Law Libraries

RE: The ABA Citation Resolution

DATE: Mar. 12, 1997

 

 

Introduction

|1. The American Association of Law Libraries (AALL) is an association comprising over 5,000 members who serve in academic, private and government law libraries. AALL promotes free and effective access to legal information, and was one of the first organizations to publicly support medium-neutral citation. AALL urges the federal courts to adopt the American Bar Association-endorsed medium-neutral (or "universal") citation form for federal judicial decisions.

|2. I. There are two key reasons why the federal courts should adopt the medium-neutral citation form endorsed by the American Bar Association: 1) it will increase access to legal information by facilitating the transition and expansion of the text of the law from paper to electronic media; and 2) it will guarantee that both the text of the law and the means of citing the law are in the public domain.

|3. A. Access to Electronic Law. The fact that nowadays decisions are disseminated in both print and electronic form is a compelling reason to change citation form away from a print-dependent form. Virtually all judicial decisions are now written and issued in electronic form originally, using word processing software. Page numbers are artificial conventions. If the size of the print or the margins changes, the paging changes. Whereas opinions were formerly published in final form in one or two print reporters, with fixed volume and page numbers, today's decisions remain in electronic form, resident in electronic databases, making volume and page numbers unnecessary if a better citation system can be devised. Such a system was devised by the Wisconsin bar, and has now been adopted for national use by the American Association of Law Libraries and substantially reaffirmed by the American Bar Association.. In that system, each decision is permanently numbered at the time of release, eliminating the need for a volume and initial page number, and each paragraph of the decision is numbered at the time of publication. The paragraph number is part of the text of the decision. Consequently, there is one universal citation, good from the beginning, no matter what medium is used or which publisher distributes the opinion.

|4. The United States Reports are a good example of the second reason for changing citation form. It is the official reporter for U.S. Supreme Court decisions, thus its citations are in the public domain; however, more than a year elapses between the publication of a U.S. Supreme Court decision and its printing in advance sheet form, with final volume and pagination information. The Supreme Court now issues its opinions in electronic form via the Hermes project. Switching to numbered decisions and paragraph numbers would allow attorneys to cite a U.S. Supreme Court case in final form from its very first appearance, hours after release. Ironically, at the present time attorneys must wait more than a year for the final citation form of U.S. Supreme Court opinions.

|5. Similarly, dissemination of Circuit Court of Appeals decisions now takes place electronically through the BBS systems at each court. If each Circuit assigned decision and paragraph numbers to its opinions, they could be downloaded and published, or cited, straight from the BBS or the Internet, without later checking other types of publications for "final" citation form. It is only a matter of time before District Court opinion will appear on the Internet as well. However, only by adopting this citation system will the full benefits of the electronic dissemination of case law be realized.

|6. B. The Need for Public Domain Citation Form - the Copyright Dispute. The issue of copyright of case citations as regards federal court decisions first arose in the 1980s, when West Publishing Co. sued to enjoin Mead Data (the then-owner of LEXIS) from adding internal page numbers (star pagination) of the Federal Reporter to the LEXIS legal database. West claimed that it owned copyright to the volume numbers, reporter names and pages of its reporters. It ceded fair use of the "initial citation"--the volume number, reporter name, and initial page of a decision--but claimed that the internal pages of the cases fell under the protection of copyright, because of the unique way in which West arranged cases within volumes. The Eighth Circuit ruled in favor of West. This result meant that even though the text of federal judicial decisions are in the public domain, the accepted method of citing to such decisions was not (at least, not in the Eighth Circuit). Ultimately the parties settled, and LEXIS paid West licensing fees to use its page numbers. West still insists on the payment of license fees from publishers who wish to include internal page numbers of West reporters in their publications. Since then, however, the U.S. Supreme Court has ruled that mere "sweat of the brow" lacking originality is not enough to merit copyright protection, and last fall the Southern District of New York rejected West's claim of copyright for its star pagination.

|7. The copyright issue has been further complicated by the purchase of West by The Thomson Corporation in a controversial merger requiring federal court approval. West still seeks to charge any non-Thomson publisher licensing fees for use of its star pagination.

|8. Legal citation convention requires attorneys citing Federal Reporter or Federal Supplement cases in briefs to use the citations of these reporters, including internal paging. This places publishers who could easily publish the decisions without the page numbers at a significant competitive disadvantage, since those who purchase legal information products are not likely to acquire materials they cannot cite. In turn, public access to the law is restricted.

|9. Requiring the use of a citation established by the federal courts, not by a single private publisher, will put the citation form once and for all, indisputably, in the public domain, freeing access to case law by publishers, who will no longer have to either pay West's charges, be sued, or sell a product without necessary pagination.

II. Costs and benefits an official federal citation will have for the courts, the bar, and the public.

|10. A. Costs and Benefits to the Courts. Following the ABA's resolution will entail two simple changes in court procedure: assigning unique numbers to decisions as they are issued in final form, and assigning paragraph numbers to each paragraph within a decision as it is issued in final form. AALL recommends that each Circuit and district court assign its own numbers. This will result in smaller numbers and less centralization. A central office in each court, logically the Court Clerk's office, would control the assignment of opinion numbers. AALL has drafted a "user's guide" to citation form for case law, similar to the ABA model, that is included as Attachment C. This user guide demonstrates how eminently feasible the universal citation system would be. Set out as Attachment D is a brief guide as to how courts could set up a numbering system.

|11. Paragraph numbering is even easier. Common word processing software programs such as WordPerfect and Word allow writers to automatically assign paragraph numbers as they type. As the appropriate law clerk or secretary reads over the final opinion, it can be checked for paragraph numbering at the same time it is proofread. Paragraph numbering should be applied uniformly throughout the courts; however guidelines for numbering already exist. British Columbia has numbered its cases and paragraphs for years with no inconvenience to publishers or researchers. A number of states have already begun numbering decisions and/or paragraphs. Attachment E is several pages from a South Dakota case, following the ABA's recommended form, as it appears in a West reporter.

|12. The benefits resulting from this citation system include simplification of case citation, and increased access to the law, for the federal court officers. Currently federal judges, law clerks and attorneys spend many hours translating into millions of dollars on research each year. By increasing competition among publishers, prices of legal research products will drop, thus allowing the courts to save money.

|13. B. Costs and Benefits to the Bar. The only cost to the bar will be the time needed to learn how the new citation form works. Benefits include less time spent on finding and converting citations, and the ability to save significant amounts of money by using less expensive research sources, such as CD ROM and the Internet.

|14. C. Costs and Benefits to the Public. Since the public pays for the courts, the courts' costs and benefits are indirectly carried over to the public. The public also bears the costs of legal research by federal, state and local governments. Lowering the costs of legal research will result in a lower bill for taxpayers. In addition, however, the public will benefit from greater access to the law. Licensing agreements of West and LEXIS either forbid public access to legal databases or make them prohibitively expensive. Libraries and laypersons will benefit from low-cost published sources, or case law freely available on the Internet.

Conclusion

|15. Democracy rests not only on access to the law, but also access to its citation. There are problems with the current system of legal citation, but solutions to those problems have already been proposed. The U.S. Judicial Conference has the opportunity to put its imprimatur on the solution already supported by major legal organizations. The American Association of Law Libraries urges the federal courts to follow the American Bar Association citation plan and thereby increase access to federal case law.

 


ATTACHMENT D
A GUIDE TO IMPLEMENTING THE UNIVERSAL CITATION SYSTEM
By Lynn Foster
Law Library Director and Professor of Law
University of Arkansas at Little Rock School of Law

The universal citation system involves two processes: numbering each decision as it is issued by the court; and numbering each paragraph of each decision.

The universal citation system involves two processes: numbering each decision as it is issued by the court; and numbering each paragraph of each decision.

1. Numbering of decisions. As each decision is issued by the court, it should receive a number. Numbers should be preceded by the year, followed by the court name (abbreviated according to the User Guide to the Universal Case Citation) (Attachment C), for example:

 

1998 US 353 1998 US App (8th) 33 1998 US App (Fed) 673 1998 US AR (W Dist) 155 1998 US IL (M Dist) 866 1998 US NY (S Dist) 956 1998 US T C 788

Logically, a central office within each court should assign the number. In most courts, the Court Clerk's Office would be that place.

Unpublished decisions. Unpublished decisions can either be numbered in a separate sequence, or seriatim with published decisions and designated with a "U", for example:

 

1998 US App (1st) 1,053U

2. Numbering of paragraphs. As the wording of each decision is finalized before its issuance, paragraph numbers should be added. Each court should number paragraphs uniformly; preferably all federal courts could follow the same rules for numbering. The court employee preparing the final version of the opinion would be the logical person to add the paragraph numbers. Paragraph symbols should accompany the numbers, e.g. |10.

Final form of decisions. Some courts change opinions after issuance. The most explicit way to handle this practice is to publish a disclaimer, preferably at the heading of any opinion not yet in final form, stating that it is subject to change. This puts the reader on notice. Other places to publish such a notice are in advance sheets, or on the home page where the opinions are posted.

For further discussion of these issues, see ||70-76 of the Final Report of the Task Force on Citation Formats, 87 L. Libr. J. 577 (1995).