Taxpayers' Assets Project (TAP) meetings on legal citation, Oct 19th, 1994
Notes by Kent McKeever, Columbia University Law School Library
Purpose of the meetings:
1. Review the current situation and perceived need for a "vendor neutral"
citation system.
The basic premise is to remove the case citation from the
traditional anchor in a particular book format. Current models
include proposals from the AALL Task force draft, Wisconsin
Bar project, and new rules in Louisiana, Colorado, and the 6th
Circuit.
Trigger of discussion at this point
Dep't of Justice request for proposals for a DB system
for DOJ offices included the ability to provide pinpoint
cites. Some smaller publishers complained, because they
felt that requirement precluded them from bidding. West
claims copyright in the second number of a pinpoint cite,
and licenses that right out to other publishers. This was
feebly contested by LEXIS, so the only case law on the
issue is a federal lower court case, favoring West.
TAP picked this up as an issue because it fits their target
of seeming profiteering on data already being paid for by
the taxpayer.
2. Review the suggested formats
This was to review ideas such as official paragraph numbering
as a way to provide a different mode for pinpoint citation.
3. Present this to the Dep't of Justice.
Although the general concept of a change in citation practices
seems awkwardly dumped into the DOJ's lap, the real
connection seems to be idea the combination of West's copyright
claim and their dominance in the market amounts to an unfair
barrier to competition, and thus worthy of a DOJ antitrust
investigation.
The morning meeting was at the Carnegie Institute, also the site of the TAP
offices. The afternoon session was in the DOJ Great Hall.
ATTENDEES
Jamie Love stated he originally sent out 1,000 invitations to publishers.
Based on a lackluster response, this then evolved into a discussion among a
small group of small electronic publishers. As word spread, more and more
people asked to attend. Ultimate about 45 - 60 folks were there.
Publisher/participants: Mead, Tax Analysts, Geronimo, Timeline,
Hyperlaw, Transnational/Juris, CD/LAW
(N.H.), NYLJ, New Ray Software, +
others
Publisher/observers: Matthew Bender, Thomsen, Butterworths, Oceana, CIS,
NY Legal Publishing, Adams & Ambrose, CCH, Banks-
Baldwin, + others
Publisher represented by attorneys: West, who sent both an IP attorney
and an antitrust attorney (Schatz &
Kaplan)
Librarians: Bob Oakley, presenting the draft positions developed by the
AALL Task Force.
Kent McKeever, to insure that BlueBook institutions were
represented.
Joan Howland (not paid by West, but they offered), Donald
Dunn (paid by West), Linda Will (paid by West), E. Wypyski
(paid by West? -did not speak), Jean O'Grady attended the DOJ
meeting but didn't speak.
Others: Lederer, of the Wisconsin Bar Committee; H. Perritt of
Villanova, who is working on this issue for the Judicial Council;
J. Seidl, who runs a Legal Research service in Minneapolis
(paid by West); G. E. Smith, Reporter of Decisions for
Alabama; M. Greenwood from the Admin. Office of the US
Courts; ???, Staff member for R. James, a Minn. Congressman.
The press: Legal Times, LA Daily Journal, + others
There were many others. Presumably TAP will distribute a list.
DISCUSSION
Love started the discussion by asking smaller publishers why they thought the
issue was important.
Ability to provide pinpoint citation is crucial for a quality product.
Current docket number citation makes products very awkward for the
user.
No standard second system for federal cases exists, and if it did, would
courts accept it?
Delays in production of Supreme Court official texts and thus cites to it
are too long, so West cites are dominant. "Hermes Project" texts are
not citable. This was Sugarman, of Hypertext, and he listed the four
elements he thinks are crucial for effective citation.
West's claims re; Texas Statute Arrangement makes citation to it a
problem.
Competitive effect of four different CD-ROM law publishers in
Virginia, which has own official text structure, has lowered costs and
increased quality. It should be a model for the US.
Greg Howe, an Oregon CD-ROM publisher, voiced his opposition
because he thought that his home state was looking to publish its' own
material, and that the government made a mess of it.
Then Oakley and Lederer were asked for comments
Inevitability of increased use of electronic sources and distribution
makes setting a standard important. Citations tied to book format, and
to a particular publisher had an anti-competitive impact
The Wisconsin project felt it was extremely important to avoid a new
parallel citation structure. Lederer also recounted that when the
proposal was approved in Wisconsin, it was applauded, which he said
he had never seen before in many years of working in the Bar.
Then Mead and West
Yunag, for Mead, mentioned the background of the 1989 - 1992 work
of the Federal Judicial Council, which was killed through an immense
lobbying effort. The LEXIS cite system counts "electronic lines", but
they would be happy to change it to paragraphs. As different court
systems have developed citation rules, such as the 6th Circuit and
Louisiana, LEXIS has been happy to work with them.
Kaplan, for West, found the whole meeting "troubling", implying that
the very nature of the meeting was anti-competitive. West feels that
citations are merely another competitive element among publishers, and
that courts and judges shouldn't require any specific source to be cited.
Anybody should be allowed to cite anything. D. Dunn pitched in for
West that he found the concept of a "vendor neutral" to mean "source
free", that the citation would no longer tell the user where the text
might be found. He called this a "nowhere citation"
The new model cite could include a parenthesized tag indicating
the system used by the author, ie; (Lexis) or (Westlaw) or (CCH
Fed. Stan. Tax Ser.), etc.
Kaplan and Love had an exchange in which Love pointed out that West
always intrudes into TAP meetings, but the reverse is not true. Kaplan
seems to be a typically aggressive litigator, which was probably not
appropriate for this meeting. Schatz spoke later and was not as
abrasive.
At this point the meeting went free-wheeling
Spivey, of Shepards', stated that they did not want to be an arbiter of
citations, and that they don't believe any permissions are required from
any publisher to produce their product. He did plead for only minimal
and necessary change.
Seidl, of the Legal Research Center (paid by West), felt that there was
no problem, and that the Nat'l Association of Reporter's rejected it
earlier this year, and that this was an offensive attempt to drag the
government into an field which didn't need it.
Richard, of CD/LAW, mentioned that the 1st Circuit requires West
citations, and that they successfully introduced products on Vermont
and New Hampshire, where there is not a significant West presence.
When they tried to do the same in Maine, they encountered more
resistance (unspecified).
This led to some discussion as to which courts required what, and what
the Bluebook required. West cited a Berring study which found only
about 15% of the courts in the USA required West products.
Sugarman later disputed the validity of that study, citing inaccuracies
in the reporting of the situation in New York.
In response to West's complaints that the publishers shouldn't be doing
this, and that judges & lawyers should be, I pointed out that Lederer's
Wisconsin group is a good "focus group" of consumers, and their
program IS the result of lawyers and judges looking at the problem.
There was a plea for consistency in the way we handle public (ie
government?) information.
The congressman's aide forced Love to explain TAP, over objections
from attendees who felt that could be done on a one-to-one basis during
the break.
At this point Love declared a break, and said that the rest of the morning
would be spent on the format of the citation, tabling further discussion of the
need or role of electronic citation
Love asked Lederer to start the second part of the meeting by recounting the
tougher issues uncovered in the process of developing the Wisconsin proposal.
Love also stated he wanted to keep the discussion focussed on future systems
for now, and not work ourselves into knots trying to find a system which
could be applied retroactively.
Lederer said that paragraph numbering, while not perfect, was better
than anything else they could come up with. The legal community
finds them familiar enough, both from statute citation, and from the
bible and the classics. Page citations were simply too awkward in an
electronic medium. The numbering had to be part of the official
opinion or else it could be ignored by publishers. Agreement had not
yet been reached on all of the technical issues, such as the problem of
indented quotes being considered a separate paragraph, etc.
The mechanics were relatively easy in a world with sophisticated word
processing, and that since WordPerfect was dominant in the Wisconsin
judicial system, macros were developed and publicized to make the
work easier for the judges' staff.
The Wisconsin Group also favored a serial number for the decision,
rather than adopting the docket number, as the docket number could
lead to confusion both with the same case at different levels, and the
same number being used for different cases at different levels.
Tax Analysts said they supported the paragraph concept, but they
wanted to hear Peter Weyner's ideas about percentage of text citation.
There was an exposition of that idea but it ultimately seemed
insufficiently transparent to the user group. It may have a life in
dealing with retrospective loading of data.
POST MEETING COMMENT: It seems that Tax Analysts are
trying to get getting stripped JURIS tapes from DOJ under a
FOIA action, so they may be gearing up to compete in a big
way. Was this FOIA action the trigger for TAP's involvement?
A serial number idea works with a single court, but what about
attempting to assign serial numbers to groups of courts, like the Federal
appeals court cases? The idea of a central registry for case numbers
was mooted, analogizing to salesmen on the road who now have the
ability to phone back to their central office and have a serial number
assigned to particular orders.
POST MEETING COMMENT: Is this a ghost problem? If the
individual circuit court administration took on this role, then
each circuit could have cases with identical numbers, but the
citation would include the circuit number as well.
Schatz pushed for docket numbers, noting, like a salesman, that West
already has a separate field for docket numbers. In partial response to
Schatz, who mentioned in passing that the blue book is 300 pp long, I
said that in itself was evidence of a problem. Dunn leapt on me by
saying that the case law portion was a tiny fraction of the 300 pp.
Love then tried to summarize the sense of the group. At the request of a
reporter a vote was taken of publishers present as to who supported the
basic concept and the numbered paragraph concept for pinpoint cites.
Virtually all who were willing to vote, voted in support of the idea, and in
support of a numbered paragraph based system.
At 2:00 PM, the group reconvened at the Department of Justice's Great Hall.
That meeting was before four staffers at DOJ, chaired by Kent Walker, and
was taped. Essentially, everyone who wanted to got to make a statement, then
the DOJ folks wrapped it up. There was no debate. Often the statements
reiterated similar comments in the morning meeting. The highlights included;
Tom Field of Tax Analysts said (1) that the existing system is
cumbersome and slow and favors West and other paper publishers, (2)
he endorses the Wisconsin system, and (3) that some agreement is
needed in the next 2 -4 years as case comes "into public domain".
Lederer said that the Wisconsin project which represented lawyers and
judges (1) didn't like to have to deal with multiple or parallel citations,
(2) that the blooming of multiple citations would be disastrous, and (3)
the ideal is one form which is publisher neutral.
Yunag of Mead, reiterated the history of the killing of earlier
efforts in this area and that LEXIS cites were non-proprietary. She
brought up the Clinton-Gore objective of a "broader access policy", and
that Mead's settlement with West on star paging was restrictive, in that
Mead still couldn't provide pinpoint cites in their paper or CD-ROM
products.
Spivey of Shepards said they had a passive role in this business, but
that changes should be minimal, and that Shepards felt they did not
need permissions for their products.
Kaplan of West led off with the comment that if only this small number
out of 1,000 invited showed up, then it is evidence that there is no
issue. Current citation forms tell you where to find an item, and the
models presented don't.
Armstrong of Geronimo and Howe of CD-ROM library repeated their
earlier statements.
Lisa Richard stated that it was her impression that the agencies she
deals with would like some standards, rather than floating along as they
do now. She also brought up the dominance through copyright issue in
passing.
Burt Goldstein of Information America spoke, although I don't think he
did in the morning. Cries from the audience forced him to admit that
his company is currently subject to a tender offer from West. He felt
that the issue is complex, and is not a "no-brainer" and that this
meeting shouldn't be used to push something through quickly. He
brought up the idea that this is really a battle among the three major
publishers, who are a "European conglomerate", Thomsen, and West.
Alan Sugarman of Hypertext pointed out he couldn't compete for the
DOJ RFP because of the pinpoint cites issue. He felt the RFP should
require the vendor to have essential data with official internal
numbering. He also felt that West had been misleading people about
the number of decisions each year. They use a figure of 700,000 and
imply that they print only the 10 - 12,000 worthwhile ones each year.
Sugarman thinks that there are only 10 - 12,000 substantive written
decisions each year (Presumably because so many cases have no written
decisions).
Love then spoke, pleading that the system can't be controlled by private
publishers. He alluded to the Bluebook in a context which I didn't
record.
Dunn spoke, saying he represented his own views, but cognizant of the
needs of the faculty and students. He said if the Bluebook is the
problem, then fixing the Bluebook is the solution.
I stated that we had been pussyfooting around the issue of West's
copyright claim in the pinpoint citation and the acquiescence by their
sometime opponents. That situation needed renewed scrutiny.
Seidl echoed his earlier statements.
Joan Howland, Librarian at U. Minn., asked the folks at DOJ to note
three things: 1. Don't assume all librarians are for this idea -- The
AALL Task Force is but 14 of 5,000 AALL members. 2. Will this
help pro-se patrons?, and 3. It might be worthwhile to examine who is
behind this current revival of the issue.
Lederer responded to Howland's #3 to state categorically that the
impetus behind the Wisconsin Bar action came from the lawyers and
judges themselves, and not from any publishers or other parties. He
also stated that allegation that legal publishing is a free marketplace is
nonsense -- the books on the shelves behind the judge is what Lederer
has to use.
FUTURE ACTION?
Could we convene a meeting of the bluebook folks and present them with a
draft electronic format cite based on the Wisconsin model? Then let them
circulate it for comment?
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